Sharia'h and Fiqha - An Overview

Sharia'h was meant to be not merely the code of law based on the Holy Quran and Sunnah (saying and practices of the Holy Prophet (sws), but also the code of conduct, religious practices, ethical principles for personal and business conduct as well as laws for a just society.
Holy Quran has enunciated various principles for social and moral uplift and understanding the rights, duties and obligations of the individuals and communities. Broad principles for adopting practices and laws for inheritance, marriage, divorce etc. Certain punishments are also indicated as also the virtues of tolerance, justice, kindness, charity, kindness to women, children and servants, patience, repentance and forgiveness. And in Holy Quran we are commanded to acquire knowledge and ponder over things and evolve our own ways to lead a life as Muslims within the framework laid down.
Over the years Islamic scholars have interpreted in different ways the guidance given in Holy Quran and that derived from the sayings and practices of Holy Prophet Muhammad (SWS). Lack of consensus has resulted in division of Muslims in different sects and four prominent schools (madh'hab) of fiqha (jurisprudence) emerged within Sunni practice and two within Shi'a practice.

Difference Between Fiqah and Sharia'h

Fiqah like Sharia covers almost everything that has to do with all aspects of man's life like foundational laws, religious duties and obligations, business and social values, family relations, individual actions, politics, etc The main difference in Shari'ah and Fiqah can be summed up as under:

• Sharia'h encompasses what was decreed in the time of prophethood found in the Quran and prophetic traditions.
• Fiqah is what has been gained from the efforts of scholars after demise of the the Holy Prophet (sws) based on interpretation and analysis of Holy Scriptures and traditions of the Holy Prophet by the first four pious Caliphs and other Imams.

Much of Sharia laws are based on Hadiths (narrations of the traditions based on the words and actions of the Holy Prophet) and old fatwas (rulings) of Imams, Muftis, Qazis and Ulema) much of which may not wholly be applicable to the present day circumstances. There are many similarities with Common Law and secular laws specially about rendering justice without any discrimination, rights and obligations of individuals, religious freedom and human rights. But different brands of Sharia are accepted by different sects of Muslims.

Sharia'h is followed by Muslims mostly in personal and religious matters and practices. In Islamic states who have adopted Sharia certain moral aspects also apply to Non Muslim such as ban on prostitution, nudity, alcoholism and gambling. In Muslim states the sharia punishments for crimes such as theft, fraud, murder etc. apply to Muslims as well as Non Muslims. But most in most Muslim countries the penal code has many similarities with the secular countries.
Sharia'h law has been adopted in various forms partially in their own ways by some Muslim countries, ranging from a strict interpretation in Saudi Arabia and northern states of Nigeria, to a relatively liberal interpretation in much of Malaysia.

In the process of evolution Sharia different interpretations were given by different scholars in different times and in different context to the verses of Holy Quran and sayings of the Holy Prophet (sws). And due to difference of opinion about not only applicability but also recognition and authenticity of different collections of Hadiths and Fatwas different sets of Sharia laws have emerged. Considerable variations are found among the laws practiced in Saudi Arabia, Emirate, Libya, Egypt, Nigeria, Iran and Pakistan. Pakistan appears to be more liberal and solely depends on secular laws some of which are not in conformity with the Sharia laws. Punishments for theft, adultery and some fiancial laws do not conform to Sharia'h.

Sharia and the Parliament

Much of Sharia laws are based on Hadith and old fatwas of Imams (rulings by Qazis and Ulemas and scholars) much of which may not wholly be applicable to the present day circumstances.

Egypt's Grand Mufti Ali Gomaa opined recently that the Parliament should be allowed to decide how to institute Islamic Sharia laws. Similar views were expressed in the past by Dr. Israr Ahamad. Many scholars agree that the best way to implement the Islamic Shari'ah in modern times is through the cooperative efforts of the higher judiciary and the parliament.

The codification of Sharia

The codification of Islamic Sharia law is a complex process with a long history behind it, something that today�s Islamist groups would do well to understand, opined Egyptian writer Ahmad Naguib Roushdy.
In the year 2010 Saudi Arabia's top religious body had given approval for codifying the largely unwritten Sharia regulations governing the kingdom's criminal, civil and family courts in order to bring more clarity and uniformity to judicial rulings.
In Pakistan the constitution provides that Islam shall be the State religion of Pakistan. It also provides that All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah.

What Sharia Says about Demonstrations and Public Protests

Like the opinions of many Islamic Scholar the Grand Mufti of Egypt Ali Gomaa recelty opined that peaceful demonstrations are permissible as long as they do not interrupt work or disrupt traffic. He denounced the blockage of roads and railways and damage to public and private property.

Foundation of Sharia

Holy Quran is not a book of law. It is a book of guidance that Muslims are required to adhere to in accordance with the teachings of the Holy Prophet. Only broad principles are laid down for a happy, prosperous and progressive society based on the principles of morality and justice. The rights and obligations of the individuals to achieve these ends are prescribed and the need for acquisition of knowledge, truth and justice has been emphasized upon time and again. We have to frame detailed laws, rules, plans and practices within those parameters. But it is a sad fact that those parameters were obscured due to misinterpretation by the Muslim rulers who took reign after Khulfa e Rashideen (The first four rightly elected Caliphs). Bigotry of certain scholars and Mullahs and their greed for selfish ends continued to widen the gaps between understanding of Sharia among different groups and paved the way for division of Ummah in several different sects within first few hundred years of Islam.
Take for instance the punishment for adultery. Holy Quran does not prescribe death by stoning. It was an old Jewish law which was continued after the rise of Islam mainly for Jews. But based on certain Hadiths this punishment has been made applicable in Sharia for Muslims too.

Three Categories of Punishments

Sharia divides punishable acts into three categories. First "Huddud" crimes which are those committed against the "rights of God", as mentioned in Quran that are punishable by the most severe of penalties but interpretations vary from sect to sect and country to country.
Second, "qisas" crimes, involving wrongs against individuals, which are homicide and physical injury. Since the rights of the individual are involved, qisas was allowed and the rule of "diya" was established.
Third, crimes call "ta'azir", which are crimes committed against public security, with punishment largely for the discretion of the judge. Such penalties may include reprimand, fines, jail and whipping, depending upon the enormity of the act attributed to the person convicted of the crime. The crime of bribery is a ta'azir crime.
Punishment for Adultery: - Holy Quran does not prescribe death by stoning. It was an old Jewish law which was continued after the rise of Islam mainly for Jews. But based on certain Hadiths this punishment has been made applicable in Sharia for Muslims too. The verse 24.002 of Quran is as under:
"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 Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment. "

It is our religious duty to effectively check the evils of adultery, nudity, prostitution, wife-swapping etc. spreading in society. In the absence of such laws we could wind up with 30% to 60% illegitimate birth rate as generally observed in almost all the Western Countries despite high rates of abortions. We must also guard against other evils of gay /MTV culture which is a source of growing concern to good Samaritans also in almost all the Western countries.

Wide difference of opinions exists about Blasphemy law and Hudood Ordinance based on penal code of sharia for various crimes as well as some social norms. There is a general misconception that the extreme punishments are the only ones prescribed whereas in actual fact most of them are meant for serious cases of incorrigible individuals. For instance severance of hand is not prescribed for every type of theft. It is to be applied in incorrigible cases of serious nature.

Hijab

Orthodox Sharia scholars support vieling of face and body of women while going out. There appears to be no punishment or admonition for non-conformity of this norm. But enlightened Msulims who are now in majority believe that Modesty in dressing is prescribed and when going out wearing over garment in way that face is not hidden to make recognition impossible. Bohra community is conservative but their interpretation about Hijab is correct as they don Hijab when going out but do not hide face.

Repentence

The concepts of repentance and mitigation are unique in Islam. Under Western Laws a murderer may not be able to escape capital punishment but under Islamic fiqah in case of sincere repentance and on being forgiven by the blood relatives of the victim, a murderer can escape that to a lighter punishment.

Constitution of Pakistan

The constitution of Islamic Republic of Pakistan stipulates that all its laws are to be based on Holy Quran and Sunnah. The highest court in Pakistan is the Supreme Court, while a Federal Shariat court administers Islamic laws and resolves the differences of opinion on different sharia issues.
The ruling of the Shariat Bench to abolish Interest from Banking system from 2002 was stopped by the Supreme court of Pakistan who did not agree in entirety with the interpretation of the verses of Holy Quran relating to 'Riba' which was interpreted as usury and not merely "interest' as compensation for loss of purchasing power of the money under fiat system i.e. paper currency without commodity backing.

Lack of Consensus About Sharia Laws

Some politicians talk about enforcing the Islamic system without providing any tenable description of what their perceived system is. The fact is that the laws of Pakistan with certain exceptions have been molded according to Islamic ideals. But the politicians including those in religious parties as well as the people at large have not adopted Islamic ideals of conduct and have not inculcated the spirit of Islamic brotherhood. Few of us fulfill our duty and obligations to Allah and our fellow human beings as enunciated in the Holy Quran. After all these commandments and the laws of the land are meant to help us distinguish between right and wrong and what is better in life against what is worse. By itself, the law can never create anything better. Establishing respect for the law does not automatically ensure a better life for that, after all, is a job for people and not for laws and institutions.

In Pakistan there has been considerable debate about adoption of Sharia but views differ vastly how and what exactly can be done. Dr. Israr Ahmad opines that the best way to implement the Islamic Shari'ah in modern times is through the cooperative efforts of the higher judiciary and the parliament. He said that there is no bar on framing laws according the needs of modern times in a modern Islamic state. The only restriction is that no law can be formulated that is repugnant to the teachings of the Qur'an and Sunnah. In Pakistan, the implementation of the Shari'ah can be achieved only by way of properly activating the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, and by withdrawing the limitations imposed on the former concerning the Constitution of Pakistan, Muslim Personal Law, and the Procedural laws. The Federal Shariat Court should examine the existing laws and declare as invalid any law that it finds to be repugnant to the Qur'an and Sunnah; the Parliament and the Provincial Assemblies would work side-by-side to make new laws in order to replace the un-Islamic ones. In this way the Islamic Shari'ah can be codified and implemented in a gradual manner.

Islam and Good Governance:

Holy Quran lays down broad principles of good governance, justice and fair play lay not only for the rulers but also for those who exercise bureaucratic authority and power as well as the politicians and members of opposition. Study of Holy Quran would help our bureaucrats and rulers to evaluate the manners in which the powers are to be exercised.
It is ironical that the principles of human rights and governance through consultations as enunciated over 1, 500 years ago by the Holy Prophet Muhammed (PBUH) have been forgotten by Muslims but they have been adopted by the West in some way. The system of governance in USA appears to be based on the some of the same basic ideals as laid down in Holy Quran.

Democracy and Monarchy

Islam doesn't prescribe any political system but great emphasis is laid on justice and good governance. Like Bible there is no Divince Rights of Kings in Sharia but some scholar opine that only a descendent of Holy Prophet and his daughter Hazrat Fatima (RA) can be Imam or the Caliph.

In the light of different verses of Holy Quran, scholars like Altaf Ahmed Kheire and Dr. Fazlur Rehman Ansari have pointed out that the sovereignty belongs to Allah. Man is merely a vicegerent of Allah on the Earth and cannot be absolute owner possessing absolute sovereign rights. He can act only as a trustee and has to perform the duties as a ruler, in consultation with the Shura and according to the commandments of Holy Quran and as laid down in Sunnah.
a) Allah's promise of granting power and authority is for those who believe and act righteously for the benefit of the society. And this authority must be exercised for establishing Islam and peace and to ensure justice, fair play and progress and to guard against oppression, injustice and wrong doings.
b) The role of Shura i.e. consultation to help the rulers in good governance has been part of our traditions and that paved the way of Parliament and Senate in the constitution of Islamic Republic of Pakistan.
c) But the qualifications of rulers and their deputies as well the voters are two major areas where difference of opinion exists about conformity to Islamic ideals.

"Non-Muslims Under Shariah"

Holy Quran stresses the need for rendering justice without discrimination. In his book Dr. A. Rahman I. Doi, Professor of Ahamadu Bello University of Nigeria entitled "Non-Muslims Under Shariah" points out that every non-Muslim enjoys security, protection, rights and equal justice under Shariah and can follow personal laws (marriage, divorce, inheritance etc.) according to his own faith.
In his book entitled "Islamic System of Justice" the eminent Egyptian Jurist Abdul Qadir Audah shaheed observes that Shariat is the base of constitution of Muslim. As such the laws which are in consonance with would be lawful those in conflict with it void. The constitution of Islamic Republic of Pakistan also provides al that all its laws would be in consonance with Quran and Sunnah. But it is sad that even after lapse of 55 years our legislators have not been able to repeal those laws which are repugnant to Quran and Sunnah. On the contrary through Ordinances many such Financial and other laws have been enforced which are not in consonance with the principles laid down in Quran and Sunnah.
The qualification for bestowing authority or eligibility for an office for public administration would appear to be knowledge (qualifications), piety, fear of Allah and unflinching faith and ability to conform to the standards of conduct as laid down in Holy Quran and the Sunnah. The qualification of piety would render such politicians ineligible to contest or vote if they have been convicted by court of law of a sovereign state. The familiarity with the commandments and prohibition laid down in Holy Quran would be a must. "Deenyat" or Islamic Studies has been a compulsory subject in our schools but the courses need to be simplified and made more practical. It would do well if all the politicians and bureaucrats are made to undergo a refresher course relating to Justice, trust and other commandments of Holy Quran.

An important question is that whether the concept of the adult franchise or universal suffrage is in accordance with the Islamic values. This needs to be settled by Ijtehad.
There are qualifications for voters in the western democracy such as age, nationality etc. Israel is purely a Jewish state. Muslims and Christians do not have the same right as Jews. The qualification of voters according to the Islamic values may not be materially different as the constitution of Islamic Republic of Pakistan was adopted after taking into account Islamic values and traditions. But a review of that appears to be advisable. Although the beggars, destitute, illiterate Muslims who do not know even the basics of Islams, deserve our sympathy and help, it is doubtful if their judgment in electing a competent representative can be relied upon specially as the experience has indicated that their votes are purchasable cheaply and easily. Moreover, according to some traditions, the opinions of persons of guilty of moral turpitude are to be ignored! Only by Ijtehad we can learn if this applies to voters or candidates!

Altaf Ahmed Kherie in his book "Islam - A Comprehensive Guide Book". has discussed the Islamic values for good governance in the light of the verses in Holy Quran and practice and sayings of the Holy Prophet (PBUH). As he mentions all the fundamental Human Rights, the principle of equality of human beings and Islamic brotherhood, the right to freedom of speech, expression and conscience, the guarantees of safety of life, property and honor, the right of everyone to get his just dues, the right of governance by consultations are all enshrined in the Holy Quran and Holy Prophet's sayings and his last sermon and his precepts and practice. These did not remain merely as a paper declaration but were fully implemented and acted upon by the four rightly directed Caliphs, who performed all the functions of an Islamic State.
While the Holy Quran does not specifically abolish the institution of Kingship, there is no trace in the holy book of any divine right to rule by any individual, or family or class or race. Although there is mention of kings, there is no specific provision or religious sanction for automatic succession to the office of ruler.
According to Holy Quran the sovereignty belongs to Allah. Man is merely a vicegerent of Allah on the Earth and cannot be absolute owner possessing absolute sovereign rights. He can act only as a trustee and has to perform the duties as a ruler, in consultation with the Shura and according to the commandment of Holy Quran and as laid down in Sunnah.

Honesty and Justice in All Dealings

The Holy Prophet (may peace be upon him) based business dealings strictly on truth and justice. He has strongly disapproved all transactions which involve any kind of injustice or hardship to the buyer or the seller. He wanted that both, the buyer and the seller, should be truly sympathetic and considerate towards each other. One should not take undue advantage of the simplicity or ignorance of the other. The seller should not think that he has unrestricted liberty to extort as much as possible from the buyer. He has to be just; he should take his own due and give the buyer what is his.

Islam, which condemns every kind of injustice and exploitation in human relations, wants its followers to conduct business in a sublime spirit of justice tempered with human kindness.

Apostasy

Some Sharia scholars say that apostasy is punishable. But the following this Quranic guidance, Holy Prophet (SWS) never punished people for abandoning Islam, even though some of his contemporaries renounced their faith repeatedly, as recorded in the Quranic condemnation of "those who believed, then rejected faith, then believed again, then rejected faith again, and went on increasing in unbelief �" (4:137).
This is clear evidence that Holy Prophet (sws) did not want to punish people on account of their spiritual and intellectual choice. But hypocrite Infidels who became Muslims for spying or disruption were tried for treason.

Jihad and terrorism

Forcible conversion to Islam has been forbidden by Allah. But many people in the West were under the wrong impression that Islam spread by the Sword. It is now being refuted not only by Muslims but the enlightened and unbiased non Muslims and even by some the bitterest critics of Islam and they have given their own reasons for phenomenal spread of Islam. For instance Edward Gibbon in his book "The Decline and Fall of Roman Empire" observes:

" A pernicious tenet has been imputed to the Mohammadans, the duty of extirpating all other religions by the sword. This charge of ignorance and bigotry is refuted by the Koran, by the history of Musalman conquerors, and by their public and legal toleration of the Christian worship."

Jihad, in Islam, means the spiritual struggle against evil. The struggle can be by the heart, the tongue, the hand, and the sword. These refer to the inner, spiritual war of the heart against vice, passion, and ignorance; spreading the word of Islam with one's tongue; choosing to do good and avoiding evil with one's hand.
Jihad also means a full fledged war as declared by the state to defend the sovereignty or repulse threat to the state's freedom, security or religion.
The concept of Jehad is still misunderstood not only in the West but also by a few Muslims -specially those struggling for freedom or who have been victim of human right abuses by their rulers. Although suicide is prohibited, martyrdom in the course of Jihad is matter of great honor to be rewarded by Allah by a special place in paradise. Volunteering for suicide squads is not unique to Arabs. In many other countries like Japan, Vietnam, Cambodia etc such spirit is seen.
It would be observed that the countries that are worst affected by terrorism are those whose record of human rights abuses is bad or those who give aid to or favor the countries using brute state power to crush freedom movement. Desperate people burning with the desire of vengeance but having little means to fight with the State power resort to terrorist acts. But Islam does not permit such brutalities whatever the cause may be and killing of innocent people is prohibited.
Although we have laws, high ideals, values and traditions, we have forgotten them. Adoption of Islamic values in all walks of life would be akin to adoption of ethical values universally accepted and that 'd guarantee the success and prosperity in peace and tranquility

by Shah N. Khan

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