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Sharia: The Truth

When Rowan Williams, the Archbishop of Canterbury stated that elements of Sharia law would inevitably be implemented into the British legal system a while back, there was a veritable shit-storm of gum flapping, arm waving, knee jerking and mouth frothing. From right wing tabloids to left wing feminists, from Christians and Jews, to atheists and agnostics. Ask them why and you’ll get roughly the same answer:

It’s oppressive to women, the punishments are barbaric, and it discriminates against homosexuals and non-Muslims. Before you know it we’ll all be dressing our women in burkhas, stoning people for blasphemy, erecting minarets on every street corner and sending all our bacon back to Denmark. There should be one law and one law only for every British citizen.

Point out that Sharia courts have been convening across the UK for quite a while addressing financial and marital issues, and you’ll get the creeping Sharia conspiracy thrown back at you: 

This is just the tip of the iceberg, give them an inch and they’ll take the whole country!!!

Tell them that Sharia law only applies to Muslims and the tin-foil hats are donned:

We’re already living under it. Our kids are force-fed halal food; they have Muslim only swimming pools. They’ve already got our fast food outlets and leisure centres!!

To these people diversity and the acceptance of differing cultural practices are seen as ‘us’ ‘giving in’, being a ‘soft touch’ or ‘bending over backwards’, and ‘them’ as ‘taking over’, ‘forcing their ways on us’ or ‘not integrating’.

If you come over here, you live by our rules, our values, and our culture. You adapt to us, not the other way round.

It’s a very aggressive, insular attitude fuelled by suspicion, paranoia and fear. Probably due, in part, to us being an island and possibly guilt from our past as invaders, crusaders and imperialists. Afraid of revenge from our former subjects and their allies? I digress.

The fact that the thought of Sharia law playing a part in our legal system caused horror across the political and societal divides is either evidence that, a) it is indeed a barbaric, medieval doctrine or b) we have absolutely no idea what it actually is. Having done a fair bit of research into it, subsequently hearing the way the word Sharia is used, and the context in which it’s used, it’s quite obvious that the latter is closest to the truth. If you’ve made any effort to understand objectively what Sharia is, it’s easy to tell when someone purporting to be knowledgeable is in fact totally ignorant.

I could copy and paste essays, articles and whole chapters from books explaining in detail what Sharia is, but I feel, as a layman, the simpler and easier it is to digest, the more likely a fellow layman is to read and understand it.

Literally translated, Sharia means ‘path’ or ‘way’. To add some meat to the bones I’ll quote Dr. Abdul Basit,

“The word ’ Shari’ah’ literally means “to make out or chalk out a clear road to water” but in its religious usage it translates to “the highway of good life” i.e., religious values expressed in concrete terms to guide man’s life. Thus the Shariah shows how a man is to conduct his life in order to realize the Divine Will. Therefore, it includes all aspects—spiritual, mental, and physical. It comprises faith and practice, religious duties, legal and social transactions, as well as personal behavior. All is subsumed under the Shari’ah as the comprehensive principle of the total way of life!

From ‘Understanding Sharia Law’ by Wajahat Ali & Matthew Duss of the Centre of American Progress.

Sharia is not static. Its interpretations and applications have changed and continue to change over time.

There is no one thing called Sharia. A variety of Muslim communities exist, and each understands Sharia in its own way. No official document, such as the Ten Commandments, encapsulates Sharia. It is the ideal law of God as interpreted by Muslim scholars over centuries aimed toward justice, fairness, and mercy.

Sharia is overwhelmingly concerned with personal religious observance such as prayer and fasting, and not with national laws.

In simple terms Sharia is the daily journey through life for Muslims. Every action they perform and every decision they make is carried out with this ‘path’ as a guide. This path is based on 8 principles or maqasid. With words from Dr. Robert Crane.

Respect for Divine Revelation – Classical Islamic scholars interpret this to require freedom of religion, which means that each human has the right freely to seek truth.

Respect for the Human Person and Life This principle provides guidelines for what in modern parlance is called the doctrine of just war.

Respect for Family and Community – at every level all the way to the community of humankind as an important expression of the person.

Respect for the Environment – concerns the relative priorities in protecting the environment versus protecting the other essential purposes of human life.

Respect for Economic Justice – This requires respect for the rights of private property in the means of production, which is a universal human right of every human being

Respect for Political Justice – including the concept that economic democracy is a precondition for the political democracy of representative government.

Respect for Human Dignity – This principle states that the most important requirement for individual human dignity is gender equity.  In traditional Islamic thought, freedom and equality are not ultimate ends but essential means to pursue the higher purposes inherent in the divine design of the Creator for every person.

Respect for Knowledge – The last universal or essential purpose at the root of Islamic jurisprudence is respect for knowledge.  This can be sustained only by observance of the first seven principles and also is essential to each of them.

The second-order principles of this maqsad are freedom of thought, press, and assembly so that all persons can fulfil their purpose to seek knowledge wherever they can find it.

Yes, you read that correctly. Not exactly the barbaric doctrine we’ve been conditioned to fear. They actually read like human rights guidelines. These are the principles that govern ‘Sharia Law’. The ‘law’ that calls for stoning, beheading, imprisons rape victims etc? How can this be so if the principles laid out above are adhered to? Let’s take this a step at a time and separate the ‘path’ from the ‘Fiqh’, the jurisprudence (The system of specific laws, rules and regulations, which must reflect and conform to the highest principles). The ‘Islamic Law’ of sharia is based on 4 foundations or sources.

Qur’an & Sunnah of the Prophet – derived from two sources: one being infallible and containing compressed information — the Qur’an — and another being a detailed explanation of the everyday application of the principles established in the Qur’an: The Sunnah, or the living example of the Islamic prophet Muhammad.

Qiyas (analogical reasoning) – the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur’an, in order to apply a known injunction (nass) to a new circumstance and create a new injunction. Here the ruling of the Sunnah and the Qur’an may be used as a means to solve or provide a response to a new problem that may arise.

Ijma (consensus) – an Arabic term referring ideally to the consensus of the scholars of Islam.

Fiqh covers two areas, rules in relation to actions, and rules in relation to circumstances surrounding actions.

Rules in relation to actions comprise:

Obligation – eg. prayers.

Recommendation – duties recommended, but not essential; fulfilment of which is rewarded, though they may be neglected without punishment.

Permissibility – as above

Disrecommendation – is a disliked or offensive act (literally “hated”). Though it is not haram (forbidden) and therefore not a sin, a person who abstains from this action will be rewarded. Muslims are encouraged to avoid such actions when possible.

Prohibition (haraam) – In Islam it is used to refer to anything that is prohibited by the faith. Its antonym is halal.

There is no Islamic Book of Law as such.

Lena Salaymeh (a Harvard-trained lawyer now working on her doctorate in Islamic legal history at Berkeley)

In pre-colonial times, jurists—legal thinkers—would determine fiqh, the understanding of what divine law is based on their interpretation of religious texts. It’s important to note, however, that because human interpretations of divine revelation vary, and because there’s no central Islamic authority, there is no fixed legal definition of shari’ah.

There is no single school of thought on what shari’ah, or divine law, is or means—and there is no single, accepted legal code. If Islamic law were some book where you could look to it and cite to it, and say, it says right here that Western democracy is bad, then maybe that would make sense. But that’s just ridiculous…

The old interpretation chestnut. Those who prefer absolutes view it as problematic, some argue it allows greater freedom and intellectual analysis, in the right hands it could result in a fairer and more just society.

Fiqh rules are divided into four main parts:

Ibadat (on matters of worship, such as prayer, fasting, and hajj.)

Mua’malat (on dealings and transactions among people).

Hudud (punishments for crimes).

Qasas (rules of compensation for crimes)

The rule that I want to focus on is Hudud. When most people talk of Sharia it is Hudud, the penal code they have in mind. Hence the fear and paranoia whenever it is discussed. The actual meaning of the word is ‘limit’ or ‘restriction’. It is widely interpreted among progressive, reform minded Muslims that the punishments described are therefore intended as a maximum sentence that should act as a deterrent, not an automatic penalty. There is indeed Qur’anic evidence that reforming the offender should be the primary goal in Islamic law.

Ali Ashgar Engineer – Re-Thinking Islams Hudood Laws (2006)

The punishments like cutting off of hands for theft or stoning adulterer or adulteress to death existed before advent of Islam and the Qur’an retained them but also exhorted the believers to stress reforming rather than punishing. Islah and tauba are more important than mere punishment. Punishments are meant for unrepentant and hardened criminals not for any and everyone. For example the verse 5:38 about cutting off hands is followed by the verse 5:39 which stipulates, “But whoever repents after his wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah is Forgiving, Merciful.” Thus emphasis here is on reforming and repentance and this is possible before the punishment like cutting off hands is brought about.

Thus before meeting out such drastic punishment all possible efforts should be made for reforming the offender so that he does not repeat the crime and also extenuating circumstances will have to be taken into account as to why the person was compelled to commit the crime. The Qur’an lays repeated emphasis on justice thus implying that one has to establish a just socio-economic system before implementing such harsh punishments.

That is why Hazrat Umar suspended the punishment for cutting off hands during the period of famine. Also, in another case the Prophet (PBUH) reprimanded the owner of the orchard rather than punishing the child when he complained to the Prophet (PBUH) that the child had stolen fruits from the tree when the Prophet found out that he was paying almost starvation wages to the child. A crime committed out of need should be distinguished from one committed out of greed.

There are a number of crucial issues that need to be understood before being able to fully appreciate how the punishments meted out in Saudi Arabia, Iran and Nigeria, for example, have deviated so far from the classical principles detailed above.

It needs to be stressed that the culture of Ijtihad in Islamic jurisprudence has been more or less dormant since the end of the Golden Age of Islam around 7 centuries ago. Ijtihad is the practice of critical thought or reasoning by jurists, which allowed for intellectual interpretation. Instead Sharia law has been subject to Taqlid, meaning imitation, following blindly or being led by the collar, since the 14th century. This means that Islamic jurists have been adhering to interpretations and rulings that originate from medieval times, with little or no analytical thought process. There are many theories as to why this has happened, but it’s no coincidence that the Crusades, the Mongol expansion and the increasing power of politicians saw the imprisonment of Islam’s foremost intellects due to their influence on jurisprudence. This put an end to the great tradition of intellectual thought and thinkers, and Arabic society’s pre-Islamic patriarchal culture became dominant once again. It is only relatively recently that the inequality in Islamic law and clear human rights issues have brought the calls for a return to Ijtihad and the reforming of Islamic society.

Ali Asghar Engineer again.

Islam and human rights is much debated issue and most of the scholars agree that Islam not only conforms to the norms of human rights but also is precursor in this field.

But many practices among Muslims raises many questions which have to be satisfactorily answered in the light of today’s human rights norms. The hudood laws as enforced in many Muslim countries today give rise to this dilemma.

The hudood laws are undoubtedly based on the Qur’anic pronouncements but are as much result of human interpretations and human reasoning.

There are many reasons for this. The Muslim world is socially quite backward and intellectual levels of common people are not high. Medieval way of thinking persists among Muslims throughout the Muslim countries though a section of Muslim intelligentsia is in favour of social change and hence desires ijtihad. But since overwhelming number of Muslims cannot rise to those intellectual standards they resist any change and vehemently oppose any change.

To demonstrate how modern thinking and critical analysis could influence Islamic jurisprudence Ali Asghar Engineer goes on to write this:

It is also important to note that one should read all the verses on hudood punishments before coming to any conclusion about the nature of the punishment. Take cutting off hands, for example. Does it mean really cutting off the hands of a thief physically? If we take another verse of similar nature in the Chapter on Yusuf i.e. 12:31 which says, “So when she heard of their device, she sent for them and prepared for them a repast, and gave each of them a knife and said (to Joseph): Come out to them. So when they saw him, they deemed him great, and cut their hands (wa qatta’ana aydiyahunna) (in amazement), and said: Holy Allah! This is not a mortal. This is but a noble angel.”

Obviously here the words wa qatta’ana aydiyahunna does not mean they literally cut off their hands but that they injured their hands. If we similarly read the verse 5:38 it would not mean cut off hands of thieves but symbolically injure their hands so that they remember it and do not repeat the crime in future. It should not mean cutting off the palm of the thief and render him afflicted for life.

Also, we must read it in conjunction with the verse 5:33 wherein the minimum punishment for dacoity is imprisonment (aw yunfauna in al-ard). Thus when the minimum punishment for dacoity is imprisonment how can the punishment for a lesser crime i.e. theft could be cutting off hands. Thus the word qat’a should be interpreted not literally but differently. In Arabic when they say qata’a lisanahu it does not mean they cut off his tongue but it means they silenced him.

At the most qat’a yad could be taken as an exemplary punishment for a very serious crime and ordinarily such punishment should not be inflicted for less serious crime. Instead efforts should be made, as pointed out above, to reform the person. Unfortunately the Islamic world has interpreted this verse quite mechanically and have not read it along with other verses on this subject and neither have they tried to seen it in the overall context of the Islamic philosophy and values as pointed out above. Thus there is need to revise the law particularly in the modern context where human dignity and human rights have central place.

Another debatable had punishment is stoning the adulterer or adulteress to death which is known as rajm punishment. The Qur’an of course does not mention this punishment at all. The Qur’an mentions only flogging for zina. Thus we read in the verse 24:2 “The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by God, if ye believe in God and the last Day: And let a party of the believers witness their punishment.”

I hoped not to do too much copy and pasting, but I felt that the above extract illustrated perfectly how analysis and interpretation can be key. It also acts as proof that if the two primary sources for Islamic law are the Qur’an and Sunnah, stoning should play no part in the system.

Tariq Ramadan wrote the following in his call for a moratorium on corporal punishment.

Tariq Ramadan – Stop, in the Name of Humanity!

There is today a quadruple crisis of closed and repressive political systems, religious authorities promoting contradictory requirements and uneducated populations swept up with more a feeling of religious fervour and passion than true reflection. These facts cannot legitimize our silence. We are accomplices and guilty when women and men are punished, stoned or executed in the name of a formalist application of the scriptural sources.

We are convinced that reflection and the evolution in thinking are possible only from an internal societal dynamic.
For this to occur, we are advancing three arguments:

1. Muslim scholars are not in agreement on the interpretations given to the texts upon which these practices are based, nor do they agree on the required conditions in which they would be applicable. It is necessary, therefore, to have an open debate to immediately suspend these practices as there is no consensus on the matter.

2. The application of the hudud laws today is used by repressive powers to abuse women, the poor and political opponents within a quasi-legal vacuum and with a total disrespect for human dignity. The Muslim conscience cannot accept these denials of justice.

3. Muslim populations, who often do not have direct access to the texts, let themselves be swept away by a fascination that devotion to Islam means a strict and visible display of punishment, or an opposition to the West, of which they often have a stereotypical image. It is necessary to resist these irrational formalistic drifts that legitimize all forms of oppression.

I can’t stress enough how important it is to take these factors into consideration. Muslims, Islam or Sharia are not inherently evil. The fact is that uneducated populations are being oppressed and manipulated by governments & conservative clerics in pursuit of their own personal ideals, and the retention of power and influence. Surely we in the West can’t be blind to this through naivety? Even in our supposedly civilised societies we have enough examples of political corruption, misguided religious fanaticism, travesties of justice, institutionalised sexism, biased media coverage, war criminals and human rights abusers etc. Has Islamophobia become so pervasive, has the fearmongering been so convincing that even educated, intelligent and liberal westerners have been duped into accepting the ‘Sharia Threat’ conspiracy, and take it’s legitimacy at face value?

In the USA at least 13 states have recently introduced legislature banning the use of  international or foreign law, specifically for the purpose of negating the perceived threat of Sharia. Many more are also seeking to implement such a ruling. Bearing in mind that, as explained above, Sharia encompasses all aspects of Muslim life, these states are effectively making being a practicing Muslim illegal. Some right wing hatemongers are even calling for any Muslims practicing Sharia to be charged with sedition, and a bill proposed in Tennessee would make following Sharia a felony. Technically this could mean a 15 year jail sentence for praying to Allah, donating to charity, or observing Ramadan. Either we’re witnessing ignorance on a truly monumental scale, or a genuine, unashamed attempt to force Muslims out of communities.

I’ve intentionally avoided a discussion on whether religion should be allowed to have any influence on the legal system at all. I’ve also steered clear of introducing Jewish Halakha, Beth Din courts and Catholic Cannon Law to the discussion to keep the word count down! My only intention is to highlight the overwhelming ignorance that exists regarding Islamic law, not just the misuse of the word Sharia, but the principles that underpin it. Far from being a ‘legal-political-military doctrine’ as it’s been described, the basic principles at its heart could justifiably be used as a blueprint for an ethical and righteous lifestyle. You will constantly hear Islamophobes in the guise of conservative Christians, Zionists, neo-cons, racists or secularists, all saying that Sharia is not compatible with western democracy and civilised society. My reply to them would be, firstly, they over estimate how civil western society is, and secondly, they really need to read my blog!

**I strongly advise that everyone read these recent articles regarding the issue of Islamic law. All reproduced by the good people at Loonwatch. They explain far more thoroughly and articulately than myself how absurd and pointless the objections are.**

http://www.loonwatch.com/2011/04/wajahat-ali-understanding-sharia-law/

http://www.loonwatch.com/2011/04/legislators-introducing-anti-sharia-bills-dont-know-anything-about-sharia/

http://www.loonwatch.com/2011/04/upset-over-nothing-salon-com-debunks-latest-sharia-scare/

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