There have always been, in the western world, some misconceptions of what really constitute Shari’ah otherwise Islamic law. To many, Islamic law is just chopping hands, lashes, killing, capital punishments and restraining and confining women to their home. To some is just the law of the Quran and nothing derives from it apart from dictating a life of an individual who subscribe to the religion of Islam.
Point of correction; Islamic law is not the law of the Middle Eastern countries only or the law of the Arabs. It is the law of all the people in the world who subscribe to the religion of Islam and those who do not but may find salvation in practicing it. It is a divine law that serve to protect both life and limb, regulate individual daily transactions and relationships in any society that he or she exists.
I intend here to clarify some of the elements surrounding this law and our failure to fathom why Islamic law is not homogenous in its application. What most people do not understand or know is that as in English Law, Islamic law or Shari’ah develops through its Fiqh ul Islam or Islamic jurisprudence (the science or philosophy of law) as English jurisprudence in English Law. The misconception is based on the mistake that people do not differentiate between the two. They think Islamic jurisprudence is Islamic law and that’s a blatant mistake which needs to be rectified.
Islamic law is a revelation from Allah (God) to his prophet Muhammad (Peace be upon Him), contained in the Holy Book, the Quran and the sayings of the prophet himself called the Sunnat. This is obligatory in its implementation.
Therefore what ever is mentioned in the Quran and the Sunnat is Islamic law. But the mechanism employed in its application is Fiqh Islam or legal opinions of the four Jurists who founded the four schools of thought, a view by far thought to be parallel to the view held by the Shia Muslims of Iran. A Muslim will therefore either belong to any of those schools in practicing the religion and applying the Shariah. These thoughts are named after their founders; Hanbali, Shafii, Hanafi and Maliki.
In Saudi Arabia they apply Hanbali, in Yemen they apply a blend of Zaidi and Shafa'i and in Africa dominated by Shafi and Maliki. And as for the Shia in Iran
It is also important to highlight that the differences are only on the so called branches of the law not on the actual fundamental law such as where Prayers are prescribed in the Quran and the Sunnat to be observed five times a day. No school of thought expresses its opinion on that but the disagreement revolves around time and place as well as capacity of the individual concerned.
Most scholars hold their differences as merciful gesture from Allah (God Almighty) and without it Islam would have been taken to be one of the most complicated religions on earth. The variation in interpreting the Quran and the sunnat which is seen as the only way of expressing a legal opinion is based on the understanding of the Quran and the sunnat. This therefore cannot be obligatory as there may be several opinions on one issue depending on the time and place where it was first raised.
After this small background, there is now a need to clarify at how those texts from the Quran and the sunnat are approached. There are two approaches of the text; one being taking the text as it is and follow it blindly and the second is objective approach. There is no mechanical application of the two but depending on the circumstances and where one would not find any legal basis or ground in the sunnat or would not come up with any supporting text to make sense the text in issue. In Islam you can differ in opinion, it’s accepted, it's even encouraged. And as long as you base your opinion on something, you are right. The most important thing to remember here is that Islam encourages different in opinions as long as the opinion is based on something that’s not against any text of the Quran which is the ultimate source of the Shariah. The Companions of the Prophet applied these rules to their daily undertakings and the prophet is said to have allowed it.
Islamic Jurisprudence continued to develop even after the prophet; Umar bin Khataab contributed immensely to the way the text has to be approached. Umar was a great jurist, a man of a very special mind, the second Caliph and the founder of the second school of thought, the Maqasid al Sharia (the objective of the law). And he made a lot of changes in the rules even in the Quran. There are several instances, close to thirteen different cases where Umar bin Khatab applied the objective of text in the Quran and therefore I do not really call it change. What is supposed to be the law in the Quran and the Sunnah Umar cannot change it but he applied Maqasid al Sharia al Islami, the objective of text in the Quran and Sunnah. During the time of the Prophet and the first Caliph, Abu bakr, it was almost obligatory for the treasury to pay a sum of money to those who embraced Islam at the time of the prophet according to Quran, Muallafat qulub. But Umar applied the objective text by asserting that the objective was to encourage other people to join Islam, now that Islam had spread to countries like Egypt , Yemen , Syria and Persia
The Law is still there in the Quran and the Sunnat but its application should be objective and that the authority should ensure to apply that objectively and safe guard Muslim’s money that are meant for the poor and from any abuse of the system for financial gains. You can imagine how many people would have joined Islam today for financial gains if the text was to be followed blindly.
In this area of Maqasid al Sharia there is a huge wealth. Muslims have to take extra caution before applying the law blindly without having to consider its objective and the goal it’s to achieve. Imam Malik is the only founder of a madhab, school of thought, who impelements this type of objective approach but as mentioned above, the real founder is Umar Bin Khattab and after him his son Abdullah Bin Umar, and then later Saeed Bin Mosaib and so on. The Muslim jurists who applied what we call Maqasid al Sharia.
Imam Malik applied their opinions and developed this area of law. That's why you find in the Maliki school of thought Maqasid al Sharia. Through this, Maliki also brought about what is called Amral Ahlal Madinah (the rule of Madina) established as a source of legislation. And he established Al-Masalah Al-Mursala, the public interest of the Muslim community, as a source of legislation in Islam. All these meant to help Muslims understand fully the objective of the texts, the Quran and the Sunnat (Sheikh Zaki Ahmed Yamani, the implementation of Islamic Law in modern times)
It is therefore easy to relate this to our time and generation; the internet, automobile, information technology, planes and our lifestyles as to how Islamic law can fit in easily. Islamic law is the law of all generations and for all time. It is a fact that during the time Islamic law developed, the above things never existed and people had to exert so much effort to come to a conclusion of any emerging issues. Today in the absence of the Prophet, the caliphs and the Jurists; the objective application of the law would suffice to settle the mud and differences that have haunted us for years now unless otherwise. And I think even a stranger would find the Islamic law to be the most beautiful system of law. It is not rational to think that the Islamic judiciary would apply the Islamic law in its rigidity without having to take into considerations issues that I have raised here and Scholars being cautious of the fact that most people just follow things religiously when preaching the law or any text in the Quran and the Sunnat. Scholars should be able to clarify instances where the Quran addresses the prophet as a messenger, a judge and a head of state. There is no reason to hold these instances at par because the responsibilities here may vary from one position to the other. Let me give you an example on each; Allah addresses the prophet in the Quran to consult his companions on an issue of some importance; say sending troops to frontline with an enemy, here the responsibility is one of the head of state, he must democratically listen to the views of the people before executing any decision in their interest.
The prophet will be addressed to perform judicial duties where two people approaches him with an issue they have differed on, here the prophet’s wok is to strike a fair balance between them, weigh and asses their evidence if any and pronounce fair judgment between them. As a judge he will ensure that all the necessary elements are satisfied including witnesses to the incident are given an opportunity to be heard before giving his final verdict or judgement.
These two examples above can be performed by any other person as long as he is qualified for the position. But none can deputise to perform the messenger hood because Allah choose whoever wants to be his messenger, Muhammad was the last messenger sent on earth.
This is where Maqasid alsharia comes into play and Islamic law will only apply if one of the approaches have been employed properly and Maqasid alsharia is the beautiful science in applying the Islamic Law.
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