Shariah (Shari’ah, Sharia, Arabic شريعة) literally means a “path to the water hole” i.e. the way to the source of life. Its usage as law is traced directly to the Qur’an, wherein Allah (God) admonishes us to follow the clear and right way, the path of the Shariah:
Then We have put you (O Muhammad, صلى الله عليه وسلم) on the Way of Religion (Shariah). So follow you that and follow not the desires of those who know not. (Qur’an, 45:18)
The Shariah is therefore the entire religion of Islam, a whole way of life, that Muslims believe has been ordained by God Almighty. They submit to it and follow it in obedience based on faith (which by the way is not blind).
Its key principle is “preventing harm and bringing welfare to people”.[i] It protects and defends five basic human rights it has identified: Life, property, honor, religion and intellect. The penal system in Islam, which we will look at shortly, is absolutely vital in guaranteeing these fundamental rights.
There are two primary sources of the Shariah or Islamic law: Qur’an (God’s Word) and Sunnah (Prophet’s way of life). The Qur’an was revealed over a period of 23 years in the seventh century. It has been since preserved like no other book in the history of mankind. The Sunnah is everything the Prophet did, commanded to do, and/or approved of. While the uninformed may question how a 1,400-year old law could be relevant today, it does not raise a brow for anyone who has studied just the basics of Islam.
The Shariah has two dimensions to it: One specific and the other generic. Inheritance law, for example, is specific. It specifies how much portion of wealth each of the heirs should receive. Similarly are acts of worship like Prayer, Fasting, and Zakat (obligatory charity). Also, the definition of what is right and wrong does not change according to the whims of society. Adultery, homosexuality, incest, murder, rape, and theft will always remain as great crimes.
As for the generic dimension, broad principles have been laid out for us to derive laws on any modern issue. This is the second aspect of the Islamic law, called as Fiqh, which may change according to prevailing circumstances.
Fiqh literally means the true understanding of what is intended. It technically refers to the science of deducing Islamic laws from evidences found in the sources.[ii]
The science of Fiqh is bound by principles to ensure Islamic jurists go through a legitimate process laid out by the Shariah for understanding or deducing a law. Though consensus is what is aspired, the nature of Fiqh is such that Islamic jurists will differ in the deduction/understanding of parts of law, leading to a healthy difference of opinion.
An example of such a deduction would be the Islamic ruling on cigarettes. When they were first introduced, the harmful aspect of smoking was not known. Some Islamic scholars ruled that cigarettes were ‘Makrooh’ (something disliked or not recommended) because of the repugnant smell that emanates from the mouth. Their opinion was derived from Prophet Muhammad’s (صلى الله عليه وسلم) dislike of foul smells and his instruction of not coming to the mosque with smelling mouths (after eating garlic or onions, to be precise).
When it was later known that the cigarette is in fact a slow poison that kills the human being, the ruling changed to that of ‘Haraam’ (prohibited) Or Makrooh Tahrimi. This was based on the Qur’anic text that prohibits suicide and consumption of harmful things.
Similarly, it is quite possible to derive a ruling on any modern issue from the multitude number of principles found in the sources – Qur’an and Sunnah.
GETTING back to our question of concern, i.e. Shariah, we need to know that it is not merely a system of law. The Shariah is a comprehensive code of behavior that embraces both private and public activities.
It has guidance on every aspect of human life: when one is alone with his private self, with his family, neighbor, or when socializing with people. It has guidance on how to conduct oneself in economic, social and political affairs. It spells out the rights and duties of the rich, the poor, the ruler, the citizen, the worker, the employer, the neighbor, the kin, and so on. And most important of all, it has guidance for our relationship with our Creator, Allah. Very few examples are quoted below:
For the private self:
Prophet Muhammad (صلى الله عليه وسلم) said, “Fear Allah wherever you are. Follow up a bad deed with a good deed and it will blot it out. And deal with people in a good manner.” (Sunan Al-Tirmidhi)
He also said, “Surely! Everyone of you is a guardian and is responsible for his charges: The Imam (ruler) of the people is a guardian and is responsible for his subjects; a man is the guardian of his family (household) and is responsible for his subjects; a woman is the guardian of her husband’s home and of his children and is responsible for them; and the slave of a man is a guardian of his master’s property and is responsible for it. Surely, everyone of you is a guardian and responsible for his charges.” (Al-Bukhari, 9/ 89, no. 252)
For the ruler:
“Any man whom Allah has given the authority of ruling some people and he does not look after them in an honest manner, will never feel even the smell of Paradise.” (Al-Bukhari, 9/89, no. 264)
For the subject:
“A Muslim has to listen to and obey (the order of his ruler) whether he likes it or not, as long as his orders involve not one in disobedience (to Allah), but if an act of disobedience (to Allah) is imposed one should not listen to it or obey it.” (Al-Bukhari, 9/89, no. 258)
For the judge:
“A judge should not judge between two persons while he is in an angry mood.” (Al-Bukhari, 9/89, no. 272)
Right of the neighbor:
“Whoever believes in God and the Last Day (the Day of Judgment) should do good to his neighbor.” (Al-Bukhari and Muslim)
For the employee:
“Pay the worker his wage before his sweat dries.” (Ibn Majah, no. 2443)
Those who eat Riba (usury/interest) will not stand (on the Day of Resurrection) except like the standing of a person beaten by Shaitan (Satan) leading him to insanity. That is because they say: “Trading is only like Riba (usury),” whereas Allah has permitted trading and forbidden Riba (usury). So whosoever receives an admonition from his Lord and stops eating Riba (usury) shall not be punished for the past; his case is for Allah (to judge); but whoever returns [to Riba (usury)], such are the dwellers of the Fire – they will abide therein. (Qur’an, 2:275)
The Prophet said, “The best charity is that which is practiced by a wealthy person. And start giving first to your dependents.” (Al-Bukhari, 2/24, no. 507) It is obligatory on wealthy Muslims to pay 2.5% of their yearly savings to those in need of money.
For the poor:
The Prophet said, “The one who looks after a widow or a poor person is like a Mujahid (warrior) who fights for Allah’s Cause, or like him who performs prayers all the night and fasts all the day.” (Al-Bukhari, 7/64, no. 265)
So what the Shariah does is it nurtures a society. It reforms the individual and the society. It aims at bringing about the kind of society and moral order that the religion of Islam foresaw i.e. which is pleasing to God. The Shariah, therefore, encompasses and governs every sphere of human activity – from the most important things in life to the most trivial ones, if one may call it. We even have guidance on how to relieve ourselves – restroom manners. Everything is covered. It is, according to H.A.R. Gibb, “the most far-reaching and effective agent in molding the social order and the community life of the Muslim people.”
Allah says, “And We have explained everything (in detail) with full explanation.” (Qur’an, 17:12)
It is in this context that the role of punishments must be seen. The penal system is the defense mechanism of any society that upholds its values and preserves its institutions. It is the last resort that comes after several checks and balances.