The Classical Islamic Sharia Law is NOT a Word of God! (Part 1: How the Qur’anic Message Has Been Subverted)

By Muhammad Yunus, New Age Islam

-Epitome of Justice and Equity for a thousand years of Islamic civilization - now a threat to Islamic civilization and World peace, warranting an urgent paradigm shift in Islamic Juristic thoughts.

(Joint Author), Essential Message of Islam, Amana Publications, USA, 2009)

The caption is shocking indeed! The qualifying statement may, however, turn the shock into posthumous glory, concern, and challenge. The essay attempts to bring across the dichotomy between the Classical Islamic Law and its divine Sharia (the Qur’an), and the incipient role of the former in feeding Islamophobia and Islamofascism – the twin menace that complement each other to  reduce Islam to a violent, intolerant cult and provoke a clash of  civilizations, threatening Islamic civilization and world peace.    

1. The Divine Sharia of Islam – the Qur’an.  

The Qur’an uses the words Shira (technically shir‘ah and Sharia (tech. Shariah) synonymously with the generic notion of a system or principles of law (5:48, 45:18). The Qur’an further declares that it is a book of wisdom (hikma, 10:1, 31:2, 43:4, 44:4) that is made clear and distinct (12:1, 15:1, 16:64, 26:2, 27:1, 36:69, 43:2, 44:2)  with all kinds of illustrations (17:89, 18:54, 30:58, 39:27) to guide humanity and bring it ‘out of darkness into light’ – an idiomatic expression that connotes social, moral and ethical reform; and “to lift from humanity the burdens and shackles that were upon them from before” (7:157).

The Qur’anic paradigms are eternal, free from any addition or alteration since the revelation that was preserved orally as well as in various indigenous writing materials (suhuf, 80:11-16). It lays a great emphasis on the ‘constants’ of life – how a human being should behave regardless of time and era. Thus, it encompasses a broad spectrum of universal paradigms - justice, liberty, equity, good deeds, good neighborly and inter-faith relations, sharing of wealth with the poor, eradication of slavery, deliverance of women from various entrenched taboos, conjugal oppression and dehumanization; good business ethics, fair payment for goods and services, financial support to the needy, use of intellect, striving for excellence – to cite some major examples.

2. The Classical Islamic Law - Contemporary Sharia Law of Islam.

The Classical Islamic law is a cumulative juristic tradition that encompasses the legal responsa (fatawa) and opinions (rai) of all past jurists of Islam. Accordingly, it is shaped and informed by the customs, traditions, social and political conditions, juristic norms and the state of knowledge of the diverse historical points of Islamic civilization - dating from the founding Caliphate (632-661/10-40 AH) through the medieval ages to this day. Accordingly, it is a repository of, among countless other rulings, such notions as stoning to death for adultery, capital punishment for apostasy and blasphemy, punishment for homosexuality, slavery, discrimination and hatred against non-Muslims, demographic division of the world between the Muslims and non- Muslims, division of knowledge between Islamic and non-Islamic, temporary marriage, on the spot divorce, parental immunity against child abuse, gender disparity and so on, that are antithetic to the Qur’anic message. In historical perspective, these notions may not be out of line with those of the other civilizations, but dwelling into that will detract from the subject. The truth is, many of the fundamental notions and rulings of today’s overgrown Classical Sharia stand in sharp stark contrast to the realities of the modern era, as well as to the Qur’anic message.

3. Historical roots and contributions of the Classical Islamic Sharia.

Islam came at a time when the world was largely in a state of jahilliya – ignorance, injustice, oppression and exploitation. The notion of universal justice had yet to evolve. A suspect of a petty theft was bound hand and feet and thrown into a pond. If he sank, his guilt was established and punishment meted out. But if by any chance he floated, he was deemed to being possessed, and burnt on the stakes. The slaves were branded, chained, collared and dehumanized and remained slaves for their lives. If they married and raised children, the whole family became slaves. Women (wives) were sold as commodity - they could be killed by their husbands if caught in the bed with a stranger, or burnt alive with the corpses of their dead husbands as part of social norm. The pariah and the underdogs of the society – the blind, crippled, and mutilated, the lepers and the incurably diseased were regarded as the accursed creatures of God. Condemned, lampooned and ostracized, they were forsaken by their next of kin and forced to live in isolated colonies. The criminals, and the prisoners of war were slaughtered, pilloried and crucified; they had no legal hearing, nor any defense. The aristocracy watched with excitement the live show of humans being torn apart by wild beasts, or slaying rivals in vain bid for survival… The animal instinct of man reigned supreme.

This is but a part of the melodrama that was played as daily norm in different parts of the world since the ancient times. The Qur’an came to rid the world of this beastly heritage. Accordingly, among other revolutionary reforms, it placed profound emphasis on justice (7:29, 16:90,  4:58), declared justice as a harrama or binding obligation (6:152), asked humanity to give witnesses truthfully – even if it concerned themselves, their parents or relatives, the poor, or erstwhile enemies (4:135, 5:8), and to have trained professionals to guide the judges for justice to prevail (7:159, 7:181). Consequently, since its inception, administration of justice became the taproot of governance in Islamic state. This is amply illustrated by the following proclamation of Caliph Umar (634-644) issued to his governors (rendered from Arabic/Urdu):

“Administration of justice is an essential duty after the praise of God. Treat people equally, whether in your immediate presence, or in your court, so that the weak do not despair of justice, and the guilty may not be hopeful of your concession. One who makes a claim requires proving it. One who denies must take an oath. Compromise is permitted, provided it does not turn the halal (permissible) into haram (forbidden), and vice versa. If you have to give a decision tomorrow, reflect on it carefully today. If you have doubt on any matter not contained in the Qur'an or the Prophet’s Sunna (example), deeply ponder over it, and take account of similar instances and others’ opinions, and reflect over it logically...” [1]

Thus, the administration of justice with due witnessing and engagement of trained people (fuqaha) occupied the central stage of civil administration in Islam. This led to a high pitch of intellectual activity in juristic fields – any detail of which will be too technical for this exercise; but suffice it to say, that the first three centuries of Islam saw a proliferation and flowering of learned fuqaha (jurists). The names prefixing the Classical law schools (Hanafite, Shafi’ite, Malakite, Hanbalite, Ja‘farite) are those of the most learned jurists of the era [2]. However, more than a thousand years down the history, today it does not represent the universal and non-partisan spirit, juristic rigor, vitality, discipline, depth, wisdom, rationality and Qur’an-compatibility of its early centuries. In fact in the hands of extremists, radicalized elements, Pakistanis and Talibans, is an overgrown, unmanageable juristic domain, that, as applied, represents a cancerous version of its early counterpart – and the cancer is only metastasizing as time goes by.  

4. How the Qur’anic message has been subverted to evolve rulings contradictory to its message?

As Islam entered new cultures and civilizations, it encountered customs and juristic norms that contradicted the Qur’anic paradigms. To accommodate them into Islam, the doctors of law declared: “Any Qur’anic verse which contradicts the opinions of ‘our masters’ will be construed as having been abrogated, or the rule of preference will be applied thereto. It is better that the verse is interpreted in such a way that it conforms to their opinion.” [3] 

The doctors of law extrapolated this contra-Qur’anic ruling from a number of Qur’anic verses. Thus, the opening statement of the verse 3:110: “You are the best community brought forth for humanity.” Disregarding the historical context of the verse, they argued that as the leaders and guides of ‘the best of community’, they could never fall into error, even if their views conflicted with the Qur’an. The opening statement of the verse 2:143, “Thus We have made you a justly balanced community”, was cited to infer God’s special favor to Muslim community for all times. The statement, “You who believe, obey God and obey the Messenger and those among you in authority…” (4:159) was interpreted to imply the infallibility of the judgment of the one in authority on the premise that one whose obedience is commanded must be immune to error. Dialectical methods were then applied to establish the infallibility of the consensus (ijma) of the scholars – a core juristic doctrine. The theologians came up with supportive ahadith [4] and the doctors of law canonized the Hadith corpus as being indirect revelation that could legitimize their juristic notions and doctrines. Accordingly Hadith was canonized as the second source of law after the Qur’an – an ingenious juristic notion that became a fundamental doctrine of Islamic jurisprudence. This happened in the second and third centuries of Islam, when juristic and theological activities were at their peak.

Armed with these juristic rulings and doctrines, the jurists were free to issue any legal ruling or fatwa, if barely a couple of them agreed on it, and legitimize it by supportive traditions (ahadith). The floodgate was opened and the Qur’anic message was subverted to meet the social, political and historical realities and the aspirations of the ruling elite and the vested interest of the era – a mammoth floodgate that continues to discharge an endless stream of fatwas to this very day. 

5. The fallouts of the Islamic Sharia Law at this historical juncture.

There can be no doubt that, among other things, i) the Classical Islamic Law entertains notions that are antithetic to the Qur’anic message as well secular notions and universal values (2 above); ii) its application in some of the Islamic countries  – Pakistan, Afghanistan and Iran for example has led to oppression of women, gross human rights violations, stagnation of developmental activities and authoritarianism, frustrating the democratic aspirations and civil rights of their people, casting a long shadow over their futures; iii) its gender bias handicaps the advancement and empowerment of women in most Muslim countries; iv) its discrimination against minorities and brutal apostasy and blasphemy laws are blatantly punitive to the minorities in Muslim majority Sharia-compliant countries; v) its barbaric criminal justice, excesses, hegemony and pan-Islamic aspirations are fuelling Islamophobia; vi) its precedents of wanton terrorism, such as those left by the Kharijites [5] and Qaramites [6] are feeding radicalization and Isalmofacism; vii) its disregard, if not abhorrence of popular sports, recreational and cultural activities, and exclusivist underpinnings are conducing to alienation of Muslims from the mainstream society in the Muslim-minority countries; viii) its division of knowledge between Islamic and non-Islamic – such as still in vogue in many madrasas is hampering the spread of universal education among the Muslims and narrowing their intellectual horizons; ix) its notion of wealth purification by giving only 2.5% of liquid assets (nowhere the Qur’an puts this, or any figure) regardless of the lawfulness of means is promoting corruption, widening income disparity, and increasing the poverty levels in Muslim countries; x) its singular emphasis on rituals and cold shoulder, if not a blind eye to the social, moral and ethical tenets and intellectually stimulating paradigms of the Qur’an is reducing Islam to virtually a cult incapable of making its mark on the modern civilization; xi) its religion-centric political orientation and division of the world between Muslim and non-Muslim blocks is obsolete today when non-Muslim powers like India, America and EU help the Muslims in their liberation wars (such as in the erstwhile East Pakistan, Afghanistan, Libya) and the NATO attacks Yugoslavia to save the Albanian Muslims from extinction - let alone the rising trend of secularism across the world; and xii) it can potentially promote sectarianism in Islam by accentuating the classical mathhab based division.

In consideration of the above listed points (that can extended), it is high time that Muslim elite, educated class and intelligentsia take full cognizance of the dichotomy between the Classical Islamic Law (Islamic Sharia Law) and the divine Sharia of Islam – the Qur’an that does not entail any of the noted fallouts and incongruities. A denial or tacit oversight of this bitter truth will only exacerbate the problems they are facing in both Muslim majority and minority countries by the application or desired implementation of the Islamic Sharia Law or the machinations of its petro-dollar showering champions and propagators.  (To be concluded)