by Ahmed E. Souaiaia*
Being an extremely dynamic determinant system that can be both formalized and popularized, Sharia has the potential to be used to promote and protect rights as well as to be an instrument of exclusion and human rights abuse. In fact, that is the role Sharia has played throughout the history of Islamic civilization: rulers, from Yazid to Numeiri, justified their transgressions by their role as enforcers of God’s Sharia; and rebels, aggrieved, and dissenting social groups, from the Ibadis to the Muslim Brotherhood, invoked the Sharia for motivation and justification in their pursuit of delegitimizing and overthrowing unjust regimes. With an eye on its effects on human rights in historical and modern contexts, let’s take a close look at the definitions, functions, and history of Sharia.
In Muslim-majority countries, where leaders debate and negotiate legal reforms, the persistent question is whether Sharia should be the source of law or a source of law. In countries where Muslims are minorities, some local and national governments have proposed laws banning the adoption of Sharia. In territories and countries controlled by Islamist armed groups, Sharia courts have been established and self-styled scholars have imposed themselves as chief Sharia judges (sing. qadi shar`i). Social movements, violent and non-violent ones, have emerged in many Muslim-majority countries have been demanding the “implementation of Sharia” in their communities.
These events might give the impression that Sharia is a concrete and well-defined concept, body of law, and legal system. In reality, the Sharia—while anyone can invoke it —cannot be found on the bookshelves of libraries and bookstores, in digital archives, or in any other singular standardized storing mechanism. Indeed, there is no consensus, especially among Muslim religious scholars, let alone among scholars specializing in the critical study of Islam, on the meaning and functions of Sharia.
What is on the shelves of libraries and bookstores or in digital archives are fiqh collections, which literally means an understanding of Sharia. These collections are always tagged according to their scholars’ specific sect (ta`ifah; firqah), or to a particular school of jurisprudence (madhhab/mazhab) within their sect. Theological and political disputes have produced three major historical Islamic sects: Sunnism, Ibadism, and Shi`ism. Meanwhile, purely jurisprudential disputes have produced nine schools of jurisprudence within each sect: within Sunnism are Malikism, Hanafism, Shafi`ism, and Hanbalism; under the umbrella of Shi`ism are Ja`farism, Zaydism, and Isma`ilism; and Ibadism comes in Eastern and Western forms. Theological arguments and disputes fall in a genre called usul al-din, whereas legal arguments belong to the jurisprudential genre, usul al-fiqh. It is in fiqh collections in each school of jurisprudence where one can find the body of law.
Both Muslim religious scholars and Islamicists reference Sharia as if it were a concept, instrument, or institution upon whose meaning there is a universal consensus. Despite its ubiquity, Sharia remains a highly ambiguous term. That ambiguity has led to its sociopolitical use and abuse. In popular non-Arabic narratives, Sharia is often “translated” or explained as Sharia law, the Islamic legal system, Islamic law, religious law, God’s immutable divine law, and/or a faith-based code of conduct.
Sharia was where divine justice resides, as claimed by all—those in power and those opposed to them. Indeed, the implementation of the principles and rules of Sharia had fallen into the hands of the caliphs, but the authority to determine Sharia rule concerning a specific event under specific circumstances rested, most times, with `ulamā’ (sing. `ālim). The determination of who was `ālim and who was not was also somewhat independent from the caliphs’ authority and power.
While there were, as is the case nowadays, some `Ulama who were formally educated and trained in government-run institutions, many `Ulama received private educations, were self-educated, or had learned from attending unaffiliated learning courts; these `Ulama had become equally authoritative, and perhaps more influential, than government-certified and appointed scholars. Generally, reputation served a stronger role in the status of a religious scholar than formal education. In a sense, the caliph could help establish the status of the `Ulama both ways: He could legitimize those within the establishment through formalities and could also legitimize those outside the establishment by their opposition to and watchfulness of him. The authority and standing of scholars within the establishment, and that of scholars outside the establishment, oscillated depending on the public’s view of the caliph. When the caliph lacked public trust and standing as a pious and just leader, such as Yazid Ibn Mu`awiyyah, more people revered and trusted scholars from outside the establishment and appreciated their independence. On the other hand, when a caliph was respected and trusted, such as Umar II, the stock of scholars within the establishment rose, perhaps at the expense of those outside the establishment.
The institution of `Ulama is vital to the meaning and functions of Sharia because it is through `ulamā’ that Sharia comes alive in society. Some Muslim scholars argue that Sharia is the mathematical absolute sum of individual maxims and principles and the settled determination in learned religious scholars. The whole of the Quran exists in the memories of `ulamā’ and the example of the Prophet is in their imaginations, allowing `Ulama’, at any single moment, to know the Sharia principle that is most appropriate to the case before them.
Other Muslim scholars contend that Sharia is a set of principles and guidelines that scholars use to derive laws and punishments. However, there is no single authoritative text that lists these principles and guidelines. The Quran does not contain a specific section focused on principles and guidelines of Sharia. Yet, some Muslim scholars assert that the Quran is the primary source of Islamic law. The Quranic principles ostensibly foundational to Sharia are embedded within the Quran’s moral and ethical stories; they remain open to interpretation.
Rules and rulings are also key concepts associated with Sharia. The Arabic root, h-k-m, refers to halting corruption in something and restoring it to its wholesome state so that it can fulfill the purpose that fiqh, sciences (`ulum), and wisdom (hikma) have determined for it. Therefore, the hakim (in the sense of Qadi), halts aggression (zulm) and establishes justice. For legal scholars, al-hukm al-shar`i refers to the range of rules judging an act as obligatory (wajib), recommended (mandub/mustahabb), permitted (mubah), recommended against (makruh), or proscribed (muharram). Most know these legal judgments as the five legal rules. For most jurists (uṣūlis), however, these are the five legal effects of the legal ruling; for jurists, the legal ruling is the actual text of the Legislator (God) as stated in the Quran and the Sunna.
The definition of Sharia is ever evolving and subject to an emerging understanding shaped by internal and external pressures. The old boundaries are less isolating, allowing for an adaptive understanding of Sharia. Some modern Muslim religious scholars argue that Sharia consists of two types: a general Sharia covering theological matters, socio-economic transactions, and ethics, and a specific Sharia referring to practical cases not theological or ethical in nature. This understanding essentially explains the difference between the general statements and specific legal rulings, both found in the Quran. This position diverges from another explanation some modern Muslim religious scholars have proposed, arguing that both general and specific rulings belong to Sharia. However, Sharia is the specific rulings stated in the primary sources, whereas the rulings jurists have derived through ijtihād from the primary sources belong to fiqh. The difference between these two definitions is significant. The first definition conflates fiqh, as the body of law, with the legal and ethical principles from the Quran and the Sunna. The second definition establishes a body of law derived from the Quran and the Sunna, constituting Sharia, and a second body of law derived from these primary sources through ijtihād, constituting fiqh. According to this point of view, the explicit laws stated in the Quran are Sharia laws, whereas ijtihād-based rulings are called fiqh laws.
A third perspective further complicates Muslim scholars’ attempts to establish a universal definition of Sharia. Some contemporary Muslim scholars define Sharia as all revealed teachings. That is to say that Sharia is all of the Quran and all teachings of the Prophet Muhammad. Fiqh, on the other hand, is the all-encompassing legal discipline that reflects humans’ understanding of the religious teachings and consists of jurisprudence (uṣūl) and law (furū`). This understanding presents Sharia to mean the religion (al-din) and fiqh as the jurists’ understanding of the religion. Here, the domain of Sharia is broad, covering theological, ethical, and practical matters. Fiqh, on the other hand, covers only practical matters. In other words, fiqh, as defined here, is not human understanding of the whole, it is part of the whole. Fiqh thus conceived is different from a fiqh defined as the informed judgment of the jurist, regardless of the judgment being correct or erroneous.
The modern Sunni institution, al-Azhar, provides yet another distinction between Sharia and fiqh. According to al-Azhar, Sharia is all the divine teachings as revealed to the Prophet Muhammad. Fiqh is the human understanding of these teachings and their application to produce legal norms and legal decrees. Such legal norms and decrees consider not only the legal proofs (dalīl) found in the primary sources (Quran and Sunna), but consider also the circumstances involving place, time, and actors. Having said this, it becomes evident that a direct statement from the Quran, even if it is clear and explicit, is not part of the fiqh because, for something to be part of fiqh, it must be processed through intellect and contextualized by the specific circumstances. This characterization clarifies that fiqh is not and cannot be Sharia, because only Sharia is unbound by time, place, and circumstances—that is, universal.
Notwithstanding the lack of consensus on the relationship between Sharia and fiqh, Sunni Muslim religious scholars do agree on Sharia’s character. They conclude that Sharia is broad, consisting primarily of general principles. These principles, then, guide Muslim legal, ethical, and theological scholars in producing the practical and detailed rules in each of these areas. Subsequently, legal scholars produce fiqh, and such a fiqh is—unlike Sharia—limited. Sharia thus defined is intimately connected to religious texts and traditions, whereas fiqh, by definition, is mere humans’ understanding of Sharia.
In summary, religious scholars do not distinguish between Sharia and content of the Quran and the Sunna. According to the majority of Sunni scholars, there is no distinct body of law called Sharia law because the Sharia is more than law. Law, for them, is found in fiqh collections, which jurists produce through the process of informed independent reasoning, ijtihad.
From this brief overview of Muslim scholars’ opinions on the meaning and functions of Sharia and fiqh, it is clear that there is no authoritative consensus. However, they agree on this: Sharia is broader in scope than fiqh and Sharia, as provided by the Lawgiver (God), is the source of the principles that guide lawmakers who produce the body of law (fiqh). Despite this consensus, Muslim jurists and Western experts in Islamic law do not identify a catalog of Sharia principles or a hierarchy of such principles. Each scholar can use a principle from the primary source to justify their ruling on any given case. Some argue that the degree of explicitness and implicitness of a principle’s legal proof (dalīl), not its nature, decides its potency. In theory, such distinctions seem reasonable. However, they lose all meaning when actual cases present themselves. For example, Islamic law on theft (sariqa) is well-known to Muslim jurists from all major theological and jurisprudential schools, because the Quran contains an explicit statement respecting the male and female thief. Yet the Quranic text prescribed the punishment for male and female thieves, not for the act of theft; there is no explicit definition of theft in the Quran. Consequently, the definition of theft fell to the jurists and, as expected, they did not agree on a single definition.
Clearly, the presence of explicit text in a primary source does not establish a class of cases for which Sharia ruling is predetermined. Some Muslim religious scholars’ distinctions between Sharia as a body of law explicitly addressed in the primary sources (Quran and Sunna) and fiqh as a body of law derived through ijthad are unsupported by facts and logic. First, there is no collection of Sharia law that stands independent from fiqh collections. Second, even explicit texts of the Quran dealing with transactional legal matters (mu`āmalāt) are a subject of deep disagreement among Muslim scholars on aspects including definition, scope, and circumstances.
Indeed, the body of legal and jurisprudential legacy Muslim scholars have produced is complex and diverse, the result of their sectarian and jurisprudential differences. That diversity aside, the majority of Muslim scholars do not consider the body of law found in the various fiqh collections to be equivalent to Sharia. Quite the opposite: Most Muslim scholars, including those affiliated with the most conservative tendencies, emphasize that Sharia is that which is stated in the Quran and the Sunna, and that anything else is mere interpretation. However, even the most unambiguous passages of the Quran need human intervention to clarify the definition, scope, and circumstance.
Confusion about the meaning and function of Sharia is often the outcome of uninformed commentators or reductionism: simplicity-driven theories. Abuse of Sharia in Muslim communities is also prevalent, in part, due to willful ignorance of the first three centuries of Reasonists’ contributions to law and jurisprudence, and in part due to the privileging of Traditionists’ interpretations and applications of Islamic legal heritage. Traditionists claim that the Sunna and the Quran are the twin sources of Sharia. The first four caliphs, and Muslim jurists of the formative period, are unlikely to have regarded the Sunna as the source of Sharia. Their practices and precedents suggest that they understood the Sunna as part of the body of fiqh, the same way they knew that their practice, too, was building the body of fiqh, not defining an immutable Sharia. Sunna, thus understood, is interpretive, not legislative. The Sharia, on the other hand, is legislative because it is rooted in the Quran.
Another critical thought regarding Sharia is about its intimate connection to the political order during the Islam’s formative period. Many of the legal rules and rulings were made part of the body that informs Sharia because they were enacted or enforced by key political figures, not because of sound legal reasoning, an established textual basis, or consensus among independent legal authorities (ijmā`). The first four caliphs, especially, played an unmatched role in defining and shaping Islamic law (fiqh). For example, the rule of `awl, which is central to Sunni inheritance law, a fundamental institution with implications on property rights, became a legal principle not because it was based on explicit Quranic or Sunnaic text or broad consensus among jurists of that era (ijmā`), but rather because the second caliph, `Umar, imposed it. Therefore, one cannot understand the legal texts and legal theories that define Sharia without understanding the origins, evolution, and functions of Islamic political order and political theory.
From the above discussion, I would propose a working definition of Sharia, which will allow the reader to identify the events and practices that make the Sharia what it has been throughout the history of Islamic thought and societies. A definition of Sharia that is useful must account for events and ideas from both the caliphate and post-caliphate era, and must be derived from the catalog of definitions proposed by Muslims scholars since the formative period of Islamic thought and practices, not one that is produced by a theoretician informed only by reason and their own logic.
Sharia is an oral, holistic, and dynamic system rooted in the belief in a Creator, and derives its authority and power from this Creator. The belief ensures the compliance of its adherents and subjects, is boosted by enticements and threats, and is empowered through reciprocal coupling of ethical and legal norms.
The output of Sharia, when applied by learned scholars who are acutely adapt to systems thinking, is evanescently ephemeral, event-specific, and reuse-exclusive—uncapturable for precedent-setting. Notwithstanding its holistic nature, Sharia’s outcome can be made predictable by figuring out its ultimate purpose and priorities as derived from its stances on harm (darar; fasad), benefit (maslaha; ma`ruf); vulnerability (istid`af), and power (istikbar).
To understand how and why Sharia’s output is ephemeral, one must start by looking at the origins and history of the mihna (inquisition), a system that allowed the government to handout power and privilege based on one’s answer to the question on whether the Quran is or is not created.
Given the central role faith played in public life since the founding of the first Muslim community, the first generation of theologians, thinkers, and scholars had to grapple with the ideas and practical implications thereof of predeterminism and free will. Many of the precedents established by the first generation of political leaders, successors of the Prophet Muhammad, pointed in the direction of the Quran being the reflection of the circumstance of the moment; that the principles of justice, fairness, and respect for human dignity were core values of the teachings of the Quran and the practice of the Prophet—Sunna. Subsequently, the determinant opinion that produced Islamic political and religious orthodoxy over the first two centuries of Islamic history was that the Quran is created. The absolute prohibition against the multiplicity of deities, the existence of more than one being who existed outside the bound of time, being Qadim, made the argument for the creation of the Quran not only reasonable, but consistent with the doctrine of the singularity of God to which all Muslims from all schools of thought adhere. The effects of such a position on social, political, legal, and cultural systems were profound.
To believe in the creation of the Quran, the source of Sharia principles and guidance, is to believe in the creation of Sharia-compliant rulings—that judging an Event as being legal, illegal, contemptuous, or praiseworthy is an act of creation, in and of itself, that produces a unique qualification for the Event for which it was created and for nothing else. This framing of Sharia stands in contrast to the position held by the opponents of creation of the Quran (non-creationists) who end up believing in the existence of an unbreakable bond between Events and the judgements associated with them. For example, a non-creationist would hold that a thing is either good or bad and its qualification as being good or bad is not dependent on the circumstances. Theft (sariqa), they might argue, is bad or wrong, and there are no circumstances that might be present when one specific instance of stealing that could transform theft from a bad event into a good event. This illustration contrasting the ideas associated with the creation of the Quran, simplified and generalized as that might be, give us good insight into mind of some Muslim scholars’ as they tried to understand and formulate the wide range of definitions of Sharia and applications thereof.
It is neither religious, political, or ideological bias to argue that the absolutist position on the nature of events and norms is unsustainable. One must believe in the possibility of a utopian society to believe that there will be a society where no theft will ever take place. The persistence of certain behaviors and events begets inconsistence in the absolutist position. The more useful question, then, is one where the focus is not on contrasting the creationist and non-creationist positions; rather, on examining the range of ideas within the position held by creationists. In other words, to assume that Sharia, like the Quran, is moment-conscience and circumstance-specific, and try to determine the logic and priorities of the Sharia system that produce applicable rules and rulings. If we assume that Sharia is in fact adaptable and dynamic, the challenge remains in determining which practical and conceptual systems would Sharia consider determinant, contributory, formal, and informal to the extent that they allow it to accommodate human rights norms without it losing its authenticity.
* Adapted from the author’s book, Muslims and the Western Conception of Rights (2021).