Application Of The Shari’ah In The Contemporary World: Lessons From Some Muslim Countries

 Ibraheem Yaqoub Al-Zakzaky, leader of the Muslim Brotherhood movement in Nigeria, presented a paper at a recent conference at Bayaro University, Kano, discussing the nature and application of the shari’ah in view of the recent decision by the government of Nigeria’s Zamfara state to implement the shari’ah. This is the first part of the paper. The second part, comparing experiences in different countries, will be published in the next issue.

The meaning of shari’ah

“Then We made you to follow a course in the affair, therefore follow it. And do not follow the desires of those who do not know. Surely they shall not avail you the least against Allah.” (Surah al-Jathiyah, 18-19)

The word ‘shari’ah’ literally means waterway that runs one single course leading to a main stream. It is also borrowed from here to refer literally to any way, road or path that leads to a goal, be it a village, city, or building. Technically it refers to a set of rules and regulations governing the lives of Muslims at all levels, in the sense that these rules and regulations cover their spiritual, religious, cultural, political, economic and other aspects of life. No part of Muslim endeavour can be outside the scope of the shari’ah. The shari’ah is a path set by Allah ta’ala for His Messenger and those who accept him to follow in order to attain success both here and in the hereafter, when we ultimately return to our Lord.

Although the shari’ah is a set of laws governing the life of the Muslims, it is only seen as “a course in the affair” (s. al-Jathiyah 18), the affair being the deen of Islam, which is based on the nature of mankind.

“He has made plain to you of the religion what He enjoined upon Nuh and that which We have revealed to you and that which We enjoined upon Ibrahim and Musa and Isa: then keep the religion and be not divided therein” (S. ash-Shura 13).

The first principle of the deen, which is tawheed, remained unchanged from the time of Adam (as) to the Last Messenger, Muhammad (saw). Before Musa (as) the deen used to contain only the tawheed and a little shari’ah. This fact can be clearly seen in the story of Yusuf’s brethren, where Allah the Exalted says:

“So he began (the search) with their baggage before (he came to) the baggage of his brother; at length he brought it out of his brother’s baggage. Thus did We plan for Yusuf. He could not take his brother by the law of the king except that Allah willed it (so). We raise to wisdom whom we please: but over all imbued with knowledge is One, the All-knowing.” (S.Yusuf: 76).

The deen of the king translated here as the law of the king refers not to the shari’ah but to the custom of the people of Egypt then. Similarly, Yusuf (as) was able to take his brother not by the shari’ah but by the then custom of the people of Palestine – where a thief when discovered became the captive of the owner of the property that he had stolen.

From the time of Musa (as) to the last Messenger (saw) the deen of Allah was completed, law and worship. As Allah ta’ala, referring to Jews, Christian and Muslims, says in the Qur’an:

“For everyone of you we appointed a law and a way” (S.al-Ma’idah: 48).

The shari’ah as law of governance

“Those who do not govern (judge) by that which Allah has sent down (revealed), such are:

1. Rejectors of truth (S. al-Ma’idah 44)

2. Oppressors (S. al-Ma’idah 45)

3. Evil-doers (S. al-Ma’idah 47)

The root-words hukum and hakama mean to judge or to govern. Thus judgement, law, authority and government interwovenly mean one and the same thing to the Muslims. The above ayaat do not simply refer to the laws applied in the courts of judges but refer to the entire system of government. This can be clearly seen in other ayaat related to this. For example:

“Judge them (govern them) by that which Allah reveals” (S. al-Ma’idah 48)

“And judge (govern) them by that which Allah reveals” (S. al-Ma’idah 47) “Do they seek after a judgement of (the days of) ignorance? but who, for a people whose faith is assured, can give better judgement than Allah?” (S. al-Ma’idah 50)

“Verily to Him belongs the authority and He is swift in taking account” (S. al-An’am 62)

“Verily the creation as well as (the management of) the affairs (thereof) belong to Him” (S. al-A’raf 54)

Here, it is very clear that the management of creation is Allah’s alone; no one has the authority to govern its affairs except by the authority of the Creator.

“O Dawud, We appointed thee as a viceroy (khalifah) in the land so govern by truth (and justice) between men and follow not desires that can mislead thee from the path of Allah.” (S. Saad 26)

There is no dispute about the fact that the duty of any khalifah is not only to judge but to govern. In fact governance is his principle duty. Dawud (as) and his son Sulaiman (as) were both prophets and kings.

“Authority belongs to Allah alone. He hath commanded that you worship none except Him. That is the right religion, but most men understand not.” (S. Yusuf 40).

“Say, for me, I (work) on a clear sign from my Lord, but ye reject him. What ye would see hastened, is not in my power. The command [authority, judgement] rests with none but Allah: He declares the truth, and He is the best of judges.” (S. al-An’am 57.)

>From the above ayaat and numerous similar ayaat judgement (hukum) belongs to Allah, and that to judge and to govern mean the same thing. Authority and government also belong to Allah, and He has revealed laws by which to judge and to govern. This set of laws is simply called the shari’ah. Shari’ah is, therefore, not only a legal system but also a system of governance as well. A Muslim in a position of authority can only govern by the shari’ah. Similarly, Muslims cannot agree to be governed except by the shari’ah.

The affair in which the shari’ah is only a course

Islam is a complete deen. The word deen, often translated into English as ‘religion’, has the same root as dain, which means indebtedness. It means that mankind is indebted to Allah ta’ala who created him, placed him on earth and provided everything that he needs to live.

“And He giveth you of all that ye ask for but if ye count the favours of Allah, never will ye be able to number them. Verily man is given up to injustice and ingratitude” (S. Ibrahim 34).

For mankind to be just and to show gratitude he has to follow the deen of Allah. The relationship between man and God is the deen which ties man with his lord. By it he pays the debt of being created and nourished by Allah ta’ala (of course he can never pay it completely). And for his gratitude Allah ta’ala rewards him here on earth, and in the hereafter by a better life than the earthly life. This deen cannot be practised by a code of rules and regulations (the shari’ah). The deen of Allah to mankind remains unchanged: Islam, surrender to Allah. It has been the deen of all the Prophets from Adam (as) to the Seal of Messengers (saw).

Allah ta’ala says:

“Verily the only religion before Allah is Islam” (S. Aal-e Imran: 19.)

“He who seeks any religion other than Islam, never will it be accepted of him; and in the hereafter he will be among the losers” (S. Aal-e Imran: 85.)

“He it is that sent His Messenger with guidance and the religion of truth, to proclaim it over all religion, even though the polytheists may be averse” (S. at-Taubah: 33 and S. as-Saff: 9).

“He it is that hath sent His Messenger with guidance and the religion of truth, and enough is Allah for a witness” (S. al-Fath: 28.)

If human beings cannot fulfil their obligations towards their Lord except by shari’ah then we are without religion if we are without shari’ah. Islam and shari’ah are indeed inseparable; each is the practical manifestation of the other. One cannot have Islam without shari’ah or shari’ah without Islam.

Narrowed and misconstrued meaning of shari’ah

The normal books of Islamic fiqh, after brief introductions to the principles of faith, divide their text into two parts: ibadaat (acts of worship) and mu’aamalaat (transactions, dealings). The first part deals with rules and regulations for the performance of acts of worship such as prayer, fasting, pilgrimage and so on. The second part deals with rules and regulations on transactions between people. This part covers all interpersonal, communal and international relations such as marriage, trade, debts, partnership, and so on. It is also here that hudud (or prescribed limited punishments) are discussed.

Whereas the shari’ah really covers all aspects of human life, the one part that attracts the attention of almost everyone, particularly the non-Muslims, is the hadd (the prescribed punishments in the Qur’an), so much so that shari’ah to them becomes synonymous with punishment. This is to such an extent that almost every person, Muslim or non-Muslim, however ignorant, knows the prescribed punishments for theft and adultery. Sometimes they are even described with crude words like amputation or chopping off limbs!

Of course there are prescribed punishments for the offences of false witness, fornication, adultery and theft. There is also the qisas (retaliation). But all these things together constitute a small part of what the shari’ah is about. Unfortunately, the misunderstanding of the shari’ah as a punishment-system administered by courts of law is prevalent among Muslims, even those who ought to know better. Even when the ayah ‘Wa man lam yahkum’ is recited, what immediately comes to the minds of many are the judges; they think that this ayah applies only to judges. Seldom do they think that it is society that applies the shari’ah; seldom do they think of the shari’ah as a system of government; seldom do they realise that a Muslim cannot act except according to the shari’ah. They think only that the shari’ah begins and ends in the courts of law.

Muslimedia: December 16-31, 1999