The Essence of Sharia
Channel: Jamal Badawi
File Size: 26.22MB
Allah wa salatu salam ala rasulillah while sad and biella All praise is due to God, Allah, Hova, Jehovah, whatever name you give to the same one and only creator sustainer and cherishes of the universe and may his peace and blessings be upon his last prophet Muhammad, and all prophets who preceded him. I greet you all with the traditional Islamic greeting, which in a way is a greeting of all of the prophets. salaam aleikum wa rahmatullah what occurred to me the peace, blessing and mercy of Allah and use the term Allah because I prefer it for some reason, but we're talking about the same God be with you on
in the very beginning, I'd like to express my gratitude and thanks to all the organizers who brought us here together, and more particularly also to the gracious hosts at Loyola University. As time is short, I not going to detail too much in the basic introduction. But
basically just a short outline, there is a brief introduction. But then there are six core issues. What is Sharia? Secondly, something that's very much, frequently mixed with Sharia that's or jurisprudence. What are the sources of Sharia? Its supreme objectives,
characteristics and a few common misconceptions.
And the introduction, all they wanted to say, really, is that
the fears of Sharia presently, especially in the United States, is Russia phobia, if you will, may be regarded as part of a broader Islamophobia.
The notion that Sharia is a threat to democracy or America is not correct. What is correct, is that the anti Sharia movement is a threat to Americanism and American democracy.
To ask Muslims to denounce Sharia in order to be accepted or even supported as nominees, even in the presidential race, as we have heard recently, is like asking a Christian or Jew to denounce his or her own faith in order to be accepted, or supported as a nominee for the highest office of the United States.
Third point is that the essence of Sharia, which is the title
is actually not restricted to Islam.
According to the Quran in chapter 42, actually, it says, sha Allah committed deed, that Sharia is basically the same core revelation that was given to prophets before, and the five most important prophets or alluded or mentioned directly in this verse, Noah, Abraham, Moses, Jesus, and Muhammad, peace be upon them all.
Now, what is Sharia?
In the literal sense, it is the way it has been used, meaning a way to water, it has also another secondary meaning of
explanation and clarification. As a technical term legally, Sharia refer to what Allah has prescribed for us, as here as humans in general, but of course more particularly for those who accept to believe in God and follow his path. So it is the still the path or the way to reach out for Allah by committing oneself, to believe in Him and to follow His guidance in our daily lives.
What makes what some people will mix here is that Sharia is not low. Sometimes even when the term Sharia law is used. It's used in a somewhat loosely, because the law seemed to indicate a list of do's and don'ts and
regulation in specific details. In fact, Sharia does not have that many detail. Sharia technically really is a more of an authentic
ethical orientation, broad principles that do not change with the change of time, place and circumstances, but they're ruling out of themselves a vital part of that
That's sometimes is mixed up with fifth or Islamic jurisprudence. Because * in the literal sense mean understanding you can have of chemistry and anything understanding. But again as a legal term in Islamic Studies refer to the interpretation of Sharia by dealing with a specific problem that is not specifically mentioned in the two major sources of Islam.
But it requires some kind of new ideas or new solutions based on Sharia. But it deals with the practical, specific questions and that detailed way of deducing the ruling on the basis of the primary source but it's not a direct reference that is made because it wasn't there at the time of revelation of the Quran.
Now, why in Sharia is a stable and will indicate in a minute why should not be tampered with. It is fixed, that people criticize mostly, that is subject to debate, that is not infallible by any means. It can be revisited, and it can also be re evaluated. And sometimes, as the jurist Muslim jurists have held throughout history, that the factual or legal ruling, and a given issue may change with the change of time, place, custom and circumstances. So there's room for rejuvenation of
jurisprudence, but not tampering with the principle that is Sharia. However, it doesn't mean necessarily that Sharia and
are totally separate, because after all, fifth, or jurisprudence, deduction rules, is founded on the broad principles of Sharia. And Sharia does not float abstractly in the air. The Sharia can also be found in terms of the totality of the body of Islamic jurisprudence. But mixing between the two sometimes is not very helpful. But in terms of relationship there is relationship, perhaps at the risk of simplicity, or over simplification.
Because it's not a perfect analogy. It has like speaking about the Constitution of the United States, and various pieces of legislation. The Constitution, focus mainly on basic principles of religious freedom, freedom of expression, and so on. Right.
But you cannot say the Constitution is the Patriot Act, for example, Patriot Act is one of the legislations or pieces of legislation
that was thought to be based on the Constitution, but it's not immutable, it is subject to challenge, even the challenge of its constitutionality may still be open.
So this is the
clarification if there's one more term I just like to throw in very quickly. The methodology of deducing a ruling on the basis of the broad guidance and principles of Sharia has to be also a sound methodology. And that is known in Islamic studies as pseudo some translated as roots of Islamic Sharia or Islamic law. Some call it Islamic legal theory, which might be somewhat comparable probably in the study of law, in universities where aside from the various branches of law, there is also legal theory that's how to interpret the law. Again, how to interpret Sharia and apply there is a methodology the sources of Sharia I in my humble subdivision and I agree fully with Dr. camellia
on this, there are only two, what you might call primary sources of Sharia both of them are revelatory in nature, and not aware of any dispute among learned scholars our history on the this kind of order. The first one which is regarded as the source of sources is the Quran, which is to Muslims, the verbatim revelation not merely an expression verbatim revelation dictated to the prophet of Islam through Archangel Gabrielle, it is the source of source in terms of authority. It is also the highest of authenticity as it has been preserved. Word for word, both by memorization which is more important than writing for good reasons, lots of information in this and also they
have been writing. The entire Quran was written down in the lifetime of the Prophet under his supervision, but was gathered as manuscript
The time of Abu Bakar and promulgated during the time of the Third Kind of
the second and that is also a primary source is Sunnah which is universally accepted by Muslim Santa Lucia I'd like to emphasize, they may differ on the How to accept the hobbyist or certain aspect of Hadith literature, but to my understanding the both all Muslims unless those who are not learning are giving, you know, verdicts without understanding because sin Nam, which is sometimes used interchangeably with Hadeeth by some some make a slight distinction to we're not getting into that has its own authority rooted in the Quran itself and logically speaking, if Sunnah is to be discarded altogether. For onions not sufficient, otherwise Muslim would have not known how to pray,
which is something you know, not detailed in the Quran, but found inside now there are numerous examples, both in terms of textual basis, as well as logical reasoning, that certainly cannot be dismissed. Some people might have not had enough information may claim
sadhana however, or Hadith does not have the same absolute authenticity of the Quran, there are degrees of its
soundness, that for various historical reasons. So that's what we say that Sunnah, is also binding on Muslim it is the second most important source of Islamic jurisprudence or Islamic Sharia also for that matter, because both derived from the same source
irrespective but the, the qualifier for hedis is that it has to be sound, have needs to be accepted. This kind of source is regarded as also revelation in matters pertaining to the practice of faith may be somewhat akin to the Hebrew Scripture, statement of revelation to previous prophet that God inspiring the Prophet, and the Prophet uses his own word. So the message is divine, but the words are not verbatim the Word of God as the Quran.
Some writers include in the basic sources to others. An analogy or key is an enigma, which mean consensus of scholars which in a sense, meaning really, almost unanimity for that matter, if not actual unanimity. But then, both of these sources, if they were to be called sources are themselves predicated and based on the two primary sources, for it is unimaginable with diverse human being with different views, to come up with the same conclusion unless they are based on the primary sources, the Quran and Sunnah in a way that showed that it has a definitive type of meaning. And an energy must be made also, and something that is fundamentally inherent in the two primary sources.
That's why I consider them actually or relegate them to secondary sources. Yet these two tools, however, are accepted,
perhaps very, very widely by the majority, or almost all scholars as a second in line. But there are other sources of Sharia or the ducting rules as well from Sharia, which are somewhat debatable. Number one, in some, some cases debatable as to whether it should be used, or whether it should take priority over some other means, or the extent of its use. These are all details discussed in the Islamic legal theory. That's why they are placed as the second really, of the others sources.
this issues include something like the public interest is this hub, the presumption of continuity, the preference of authorities are so many things about this that you can leave at that point. But the main question really, which addresses the essence of that topic? essence of Sharia is actually inherent in its makkasan. It is not only that it is these with broad, unchangeable principles like freedom and human dignity and so on. You can't improve on that these are universal ones.
But more specifically, and concretely it is through the objectives of Sharia, that we realize that it is not minutes, but mercy.
The first objective of Sharia before we go into that what before we go into that, when we speak about the mocassin, or supreme objectives of
Sharia, it is useful to make a distinction of people's need because Sharia is to serve people's needs and legitimate concerns that the first category is
borrowed at things that are absolutely needed for survival and survival in reasonable health. So anything that's very injurious or threatening to life should take priority.
hygiene, the next one means something, which is very important to have some reasonable ease and convenience, in life, but not too much luxurious, that would be second, the third would be anything beyond that. items that are would be nice to have. But of course, it's not absolute necessity. The focus, obviously in mocassin are objectives of Sharia is something that's common among all humans, if you get are only two luxuries, you're addressing only one class in society. So the normally focus on absolute needs were all human being shared, rich, or poor. For that matter, it is within that that we did first with the first category of
safeguarding or protecting faith. And faith yet does does not necessarily mean as some people perhaps think, faith of Islam because we find evidence in the Quran, that people are free to choose whatever they want to believe in. There are mentioned that in so many verses in the Quran, but the Quran doesn't stop at that in chapter 22. It proclaims even the duty of Muslims and duty of all to respect and protect all places of worship, and they do not begin even with the masjid, with Masada that comes at the end. And that you find in chapter 22, verses 39 and 40. And, without giving mentioning, yet, you will have a copy of the have already copy of the
PowerPoint presentation. So you can refer to these verses, just to give you very quickly. It also calls for the sake of interfaith peace, to peaceful, respectful dialogue with all but the verse I'm referring to here, Chapter 29 actually deal particularly with the people of the book, ie, Jews, and Christians. And the moral or moral of that verse really, is to look for the common ground, and common platforms of cooperation, without necessarily having to change your faith or forcing others to change their faith, there is coexistence of various faith.
One of the aspects of respect of religious sentiments of other people is the fact both in theory and to a large extent, in practice, as we find, for example, today still in Egypt, that religious minorities are entitled to have their own courts, their own law,
even if they're a small percentage, that pertain to religiously predicated laws, such as personal law, like marriage, divorce, custody, and the division of the state after death. It's amazing that this right is not giving neither to Jewish rabbis, Christian priests or Muslim imams in America, because in the case of divorce, it has to be through a secular system that treats everybody the same, irrespective of the diversity of this deeply personal, religious aspect. And then, moving on
to the second one,
protection of life, an emphasis on not only saving human life, but it implies as well, not just saving the person from murder, but providing the food, clothing, medication and basic needs of the person. Some Judas say that even if a person is a professional, the state is responsible to help the person to get the tools by which he can earn a living. And in order to
determine aggression on human life. There are certain punishments for murder, but the rules of evidence are very stringent. And there is room that does not exist to my knowledge now, even in western laws, that even if the case of murder goes before court already, it does not simply become a state, unforgivable thing. In fact, in Islam, and that's the text of the Quran. The family of the murder may forgive the person who committed murder with or without financial, this is a step ahead even of what we have in the world today in terms of rehabilitation and accepting people. The Quran even speak about people who commit very, very serious crimes and it's
If they repent before you catch them, then know that Allah is most forgiving. This is very significant verse in the Quran about rehabilitation rather than
vengeance and punishment as such, protecting the mind on the positive side by seeking knowledge as a religious duty. And that might explain the immense contribution of early Muslim to Islamic civilization over so many centuries, that actually paved the way for European Renaissance. The prohibition in the on the negative side of anything that be clouds and or destroy that great gift of God, that is the mind.
protection of the family Some call it also Nestle or progeny
stems from the consideration of family as the cornerstone of society. That relationship between the two genders have two elements one is absolute and complete equality, not equity, even such as the status in the moral and spiritual sense the dignity sense, but there is also the equitable equity, when road differentiation is taken into account and complementarity of roads of male and female on various levels is a necessary thing to have a functional society. And equity means that the equality of the totality of duties and responsibilities rather than picking one or the other, so they could be inequalities in some items, but overall, they are equals, you might say equal equality may cause
the word equity perhaps, for simplicity, there is also lots of provision to protect the family and progeny for a proper upbringing of the children morally, spiritually, socially, skill wise, and so on. Number five, among the most, again, common ones is to protect property rights, the right to work and living to acquire wealth and spend it but again, with the proviso morally and lawfully the prohibition of any form of cheating, and punishment of theft, and embezzlement of private or public funds for that. But what is forgotten here is that the punishments should be preceded by a removal of the causes of the crime rather than jumping on to punish an example of that, that the second
Kayla farmer stopped punishing for theft in a year of famine,
where there was no there was shortage of food. And in fact, there are more than one indication that you have to remove the reason first, whether it's in the matter of sexual validity or property, you don't punish until you have removed the reason why people are committing crime in the case of theft, for example, achieving social justice and economic justice, so that people will not feel pushed into that because of discrimination or or lack of concern on the part of society.
There is a sixth one before I continue with this, some scholars like benatia Taha panache or
they say that you can also add to that, which a term also that was used by some
classical scholar, and added actually mean basically honor and reputation. And I support that addition, in fact, because it is totally in line with what the Quran speaks about, which is the dignity of the human, you talk about your reputation, Your Honor, it is dignity because the Quran speak about the dignity of all human beings, as we find in chapter 17, verse 17, that got in novel and honored the human without specifying Muslims or non Muslim it applies to all In any case, the origin. Okay. Thanks for reminding. The the main characteristics of Sharia, old actually are predicated on the first one, if indeed, it is accepted that the Lord of Abraham and all the prophets
and the Lord have hammered and all humans, as such, has given us some concise, definitive statements that cannot be changed, like freedom, dignity, and sort of equality before God and all of that. Then, if the order for the Muslim at least if the divine origin of those teachings come from the perfect the Creator, then to claim that we can make a copy, edit of the divine revelation is really affording a human folly and arrogance to some degree for the Muslim who accept that it never dare to say, I go ahead and make edits in the Quran because I don't like this and I think I can have something more modern or more valid.
God has the perfect knowledge. And that's a belief held by all Abrahamic religions.
It has also an implication that in terms of reinforcement and issue that sociologists and criminologists always keep examining, what makes people follow the law? Well, fear of punishment might be one and all of that social pressure could be one. But above all, for the believer in God, if you violate, for example, the issue of equality or
aggressing, against the dignity of another human being, you might get away legally, but you cannot get away spiritually and morally, because you do that out of your conviction that you're obeying God. If you do deviate, then you have a sense of sinfulness and try to repent from that, even though the law may not get at you for it. The second is that it is moral, morally anchored. And I have to be very honest and specific on this. Some people say How about human rights declaration. So now there are many areas of overlap and similar similarity. But to the Muslim, the rights has to be defined by the Creator, and anything that violates the rules of God, at least from the theoretical
from the standpoint of the Muslim belief, it is invalid for him, it doesn't mean that the act should act as a vigilante, it doesn't mean that some people may not choose to disobey. But the moral anchor is a parameter also in accepting or rejecting any particular actions. In fact, in the word of the Prophet of Islam, I was sent also only to complete the northern modern behavior.
Again, being divine means also that it's comprehensive and well balanced. Because the revealer is the creator of the human, who does not only deal with compartments in human life, but take the totality and integrity of human life in all its phases, and all its levels. Now, the essence, as we said earlier, in Sharia has been summed up by some classic a jurist, in one sentence, gentleman, with a mother to bring forth or secure, what has been efficient, good for the well being of human beings, and repelling or resisting or removing, or at least mitigating harms to the humans. That's why actually some of them said, Sharia is all mercy and all justice, for that matter, if you look at
the thrust of it, rather than getting caught on this law, or that, no, which is sometimes a matter of jurisprudence, not Sharia. In itself. It means also that God's revealed it for human beings who have their weakness and difficulties. It is not utopian, it is practical, that appears, sometimes it might be needed, because practically speaking like other secular law, you don't leave those rights and entitlements of humans without controls and sanction of those who violated it's equitable, because God is not partial to gender or race or group. It has to be the ultimate justice, actually. And then it has the built in flexibility, in terms of, as we mentioned earlier, interpretation that
might change provided following certain guidelines, so that it's not just an open thing. Very quickly at the very end. And I'm sorry for the time that we lost earlier this but I tried to go quick.
There are some many someone's misconception about I haven't explained the comprehensiveness of Sharia, that deals with acts of worship, it is with family law deals with all aspects of life. A lot of people when they think of Sharia, they think only of one aspect, only the penal law. In fact, the rules of thumb are the verses in the Quran can represent less than 8% of the totality of the Quran. The thrust of the Quran is not do's and don'ts, or just
punishment, it's only tiny part. And that's rules. In general, the penal punishment might be even the smaller part of that 8%. Yet, the whole thing is reduced when we think of Sharia, some people might get to the issue.
So that has been and just to add
another point here that the focus here in Sharia really is not just punishing, but the spiritual transformation of individual and society, it's not the main aspect or thrust of Sharia. Secondly, Sharia is old and obsolete, well, water and air is old. Not every old thing is bad. Not every new thing is good by definition. And again, we forget again, when we say Sharia is all that we mix between Sharia and jurisprudence. If we're talking about the definitive, broad principles, then how can we improve
On dignity of the human being, or make modification to. But what some people when they say Sharia is or maybe they're talking about juridical interpretations, and political interpretation is not infallible and can be subject to review and re visitation. And there is a built in mechanism already to prevent
rigidity. So that's why the motto, as I mentioned earlier, changing according to the circumstances as well.
Surgery is again, it's human right? Well, the whole thrust of Sharia democracy, the five main objectives is about duties and rights after all. So how could we say it's against human rights? The it might differ in some detail with universal declaration or whatever, or loads of other countries. But that is unfair, because the thrust of human rights is very much the same.
Okay, to protect the rights of others, you have to provide penalties and some people when they speak about the right of the crime criminal, yes, it should be guaranteed no question. But we should think alongside of the right of the victims, also, when we sometimes think of civility or certain penalties, or transgression, and
Sharia has been Penal Law is harsh. We hit that a lot. Number one, we cannot claim to be more merciful than the Creator who is merciful to all parties. Secondly, we differ as humans as to what constitutes harshness, is capital punishment, like human rights organization hold unusual and harsh punishment, or is it accepted, in some cases, like in the United States, for example, and maybe other countries, the method is not the punishment itself for aggressing our peoples life, but the fairness of the system that does not
weigh hard, or very heavily against certain groups in society. And then the thing that is not as well known is that Sharia narrows, narrows very much the scope of application of penalty as the time seem to be running very quickly. I can just mention two quick two three quick things. And one example. One, when there is penalty, Islam, as we said earlier, one is to remove the causes of the crime,
to that punishment apply equally to male and female.
The some people just say, Sorry, I says this about women. Number three,
that if a person reports that you have seen someone committing a sin, like adultery, for example, or fornication, and it happened at the time of the Prophet, and the Prophet when that person came to ask, even if he can report that he said, If you covered him with your garment, it would have been better for you. Number four, that if the ruler or judge is informed about
some people might be doing something sinful, that he should not be eager to prosecute, and try to catch them or spy on them. And there are events that happened at the time of the second case, to support that fifthly. If a person come to confess that you committed a major sin or act that required one of those severe punishment, but did not specify which he should not be asked what is the sin that you did. And that's the example I was going to say, one, and that's narrated in Bukhari and Muslim as well. The two
most important sources of Hadith so that the highest degree of summons a man came to Prophet Muhammad peace be upon him in his mosque in Medina, even though it doesn't specify most but I presume It was the most requested that prayer was done, and the properties are in the mosque. And he said, O Messenger of Allah, I committed that grave act that required one of those severe punishments. The Prophet ignored him and continued talking to his companion.
Then the time of the prayer came much later. So everybody stood, and they did the prayers. Then the man came, I guess, actually might have been cooked fornication or adultery anyway.
So the man came again, after the prayers he thought that the Prophet forgot. He said, Oh prophet of Allah, I committed a grave sin, please, purify me as an Allah, you can apply the severe penalty on me. So the Prophet looks compassionately to him and say
Having to pray with us? He said yes. He said, Allah has forgiven you. There are more important details about this most misunderstood limits. And what gives a bad pictures in the mind of many people is either a misunderstanding of the spirit of Sharia by giving a juridical opinion that is not appropriate that could be challenged on the basis of the ultimate source, Sharia just like challenging any piece of legislation on the basis of the constitutionality, the highest reference number two. So that's the first one
epinal khayim actually gives one of the great scholars was the student of military mayor, the illustrious, says that in Islam, as I mentioned to earlier in chapter five, it given opportunity for rehabilitation of serious crimes, people who, like highway robbers who murder people armed robbery, you know, who are involved in sedition against the state. And he says that how come forgiveness in these grave crimes is acceptable, and forgiveness in lesser, serious but lesser, serious problem, like, for example, a lotta information cannot be accepted. And that in reality is proven by the Hadith of the Prophet because in all likelihood, probably, this man committed adultery, because
otherwise, if he committed theft, he would have brought what is taught back or astir. So it seems to have been perhaps a mortal sin like that. So how come it's accepted with more serious crime, not in lesser crime. Finally, the prophet peace be upon him in more than one occasion, when people thought that aside from forgiveness, repentance, and being forgiven by Allah, which the Prophet favor, some people, in their own mentality, thought that the only way to purify oneself is to get the punishment here in this world better than the hereafter. And they kept insisting, but the Prophet used to ignore them turn his face away from that. There are numerous examples that he wanted to give a
message. If you haven't been caught already, go and seek repentance from Allah. There is a lot more to learn about each other. This is only a humble contribution of just a common law. Help us all to understand fairly and objectively what Sharia is all about. Thank you.