Mobirise“Shariah Law” is an English term that is used – often-times pejoratively – to refer to legal systems where many or most of the tenets of the law are informed by the Shariah. The picture painted is one of a despotic autocracy with members of the clergy forming a ruling body intolerant of any way of life besides that which they approve – a backward set of restrictions enforced by barbaric punishments. When the average westerner (or even many Muslims who did not grow up with an in-depth exposure to Islam) hears the term Shariah, the first thoughts
that come to their mind tend to involve mindless beheadings, stonings, floggings or amputations. If not these, then surely intolerance, bigotry and inequality tend to be the first adjectives that the average westerner has come to associate with Shariah. Another common trope is that Muslims want to impose “Shariah Law” on Muslim-minority lands. It comes as no surprise, as these are primarily the contexts in which popular media will tend to reference the
term. However, this sort of caricature would be just as misleading as to say that the French
constitution centers on just banning the headscarf or that Nazi Germany was all about animal
welfare and environmental protection.
What is the Shariah, then? Literally, Shariah means 'the way', more specifically the way to guidance as inspired by mankind’s Creator. The source of Shariah is only revealed guidance, either in the form of the Qur’an or the authentic Sunnah of the Prophet Muhammad SAWS. Fiqh, on the other hand, is how Islamic scholars in different places and at different times have interpreted the texts of the revealed guidance in light of their circumstances and based on supporting evidence from the prophet’s companions, cultural factors and other principles of juristic reasoning to arrive at legal rulings about a spectrum of standard situations. A fatwa is a legal verdict given by a scholar or committee of scholars about a specific religious issue relating to an individual or group of people. A fatwa, only when given by a government appointed judge, is legally binding. In any case, both the classical compilations of Fiqh and modern fatwas are attempts to arrive at the true understanding of the Shariah, the way revealed by Allah, and being human efforts, may be imperfect or even differ from one another regarding the minute details of certain Islamic injunctions.
Shariah includes guidelines for inner purification of the self and directing it to Allah alone, while protecting against diseases of the heart like arrogance and jealousy, as well as dos and don’ts for Muslims in their everyday life as part of a productive, God-fearing community. When God-fearing Muslims are in charge of policy-making at any level, whether it be at the level of the household, an organization, or even a state, then just as in all other aspects of life, they turn to the Shariah for guidance. This includes rules for how to conduct business in a fair manner and without exploitative practices like deception or usury, how different members of society are to interact with one another respectfully and in a dignified manner while minimizing the risk of harm or alienation, as well as the rights and responsibilities members of the society have as a function of their relationship to others or their status in society, such as that of parents, children, spouses, other relatives, learned people, the poor and destitute of society as well as the ones with authority. Similarly, the Shariah provides guidance regarding how states should deal with wrong-doers, whether they be individuals within the society or themselves states which are engaged in injustice. An important point to note here is that for laws in accordance with Shariah to be applied, the Fox News image of a religious autocratic regime need not be in place. Many of the same laws that many critics would deem as undemocratic would be expected to be legislated in any truly independent and democratic country where most Muslims wish for laws to be aligned with Shariah.
The number of “laws” that Islam provides for states to implement are in fact very few, including what western commentators would refer to as the “controversial” Hudud (explicitly ordained punishments in Islam, singular: Hadd) punishments. The majority of the Shariah contains principle guidelines, which Islamic jurists of the age can convert into laws that suit the national
landscape.
Much of these Shariah based laws are such that nobody, eastern or western would find objectionable. This ranges from the state caring for the poor, widows and orphans to all people being equal under the law, irrespective of their color, nationality, or socio-economic status, or even the right of all people to privacy within their homes (an exhaustive list, of course, cannot be provided here). Ironically, of the few laws that some in the west find objectionable today, many hold clear parallels across western and non-Islamic history, up to very recent times. Let us take a quick overview of the most common criticisms of “Shariah Law”. These can be split into three broad categories:
1. Criticisms based on a confusion between religion, culture and politics
2. Criticisms based on a lack of understanding of the nuances of Islamic law and society
3. Criticisms based on a projection of western world views and historical baggage onto Islamic societies
In this article, we focus on clarifying misconceptions regarding Shariah, i.e. points 1 and 2. We will briefly address criticisms related to point 3, but diving deeper would go beyond the scope of this article. For those who are interested, we link to our detailed articles on each of those topics.
Criticisms based on a confusion between religion, culture and politics
Many criticisms of Islamic law are based on complete myths. For example, that Islam does not allow women to drive, or go to work, or that girls cannot go to school under Islamic law. Similarly, it is blatantly false that Islamic law prohibits criticizing the government, does not allow people of other faiths to practice their beliefs and forcibly converts them or orders their places of worship to be destroyed. Furthermore, it is a commonly quoted myth that Islam ordains or even condones honor killing or female circumcision. Above all, the misconception that Shariah gives Muslims free rein to kill infidels or commit acts of terror is entirely baseless. In fact, a simple study of the Qur’an or Islamic sciences would disavow anyone of such notions. That is not to say that such policies do not exist or have not existed, but the fact of the matter is that such policies have nothing to do with Islam, but rather with cultural or political factors. Autocratic regimes do not like to be criticized, so they ban dissent and protests. Cultural reasons cause some governments to prevent women from driving or going to school or work, which they then justify under the guise of Islamic segregation laws (more on that in the next section). Militant groups perform indiscriminate killing or devastation to avenge the innocents caused by their enemies and try to justify it using flimsy arguments from the Qur’an. Honor killing or female circumcision are practiced in certain regions of the world, irrespective of religion and are primarily motivated through cultural factors. Of the more than 50 Muslim majority countries, some of these mythical so called “Shariah Law” policies are not in effect anywhere in the world, some are practiced in a few odd countries out there, some only by militant organizations, and some in Muslim and non-Muslim states alike. What’s common among all the above mentioned criticisms is that they have nothing to do with Islam.
Criticisms based on a lack of understanding of the nuances of Islamic law and society
Some criticisms, on the other hand are actually based on a misunderstanding of laws or principles that actually do have a basis in Islam. For example, the misconception that the hudud laws can be applied arbitrarily by just anybody, that petty thieves would have their hands amputated, that people who have homosexual inclinations would be executed under Islamic law, that non-Muslims who profess their own faith or criticize Islam would be executed for blasphemy, that women cannot get divorced, have unequal testimony and receive less inheritance or that women are punished for promiscuous behavior while men may do as they please are all based on a misunderstanding of the nuances of Islamic law.
Reality is far different. To begin with, only the state has the right to enact any penalties for perceived crimes – no non-state or extra-judicial actor has the right to conduct floggings or executions on their own whim. Islam lays down very strict criteria to establish a crime for hudud to be applied; in the case of fornication, four male witnesses to the explicit act itself (anything lesser would not qualify for the Hadd to be applied) who are known to be pious and
trustworthy and not known to lie. In essence, such rigorous criteria would only conceivably be fulfilled if two people were to fornicate in public or if they were to themselves confess to the deed in public, and any act committed behind closed doors would be left to Allah to judge (an exception here is the case of a cheating spouse being discovered in the act). In case that someone lays a false allegation, or even a true one but cannot back it up with witnesses, then they are to be punished for attacking the honor of a person of upstanding character. Furthermore, there is no difference between men and women regarding the punishment for fornication, as some people might be led to believe. The same is the case for people who have sexual inclinations towards individuals of the same sex.
Given that this is just a feeling, it in itself is no grounds for any legal action or punishment, as long as they do not perform the explicit act in front of 4 witnesses as described above, or they themselves confess to the deed in public. Similarly, it is not true that women cannot initiate a divorce. While it is true that standard divorce (talaaq) is in the hands of the husband, Islam allows a woman to initiate a khul’, in which she agrees to return her brides-gift in exchange for her husband divorcing her, usually with the involvement of an authority like an Islamic court. Taking a look at the Hadd for theft, it is only applied to a person who steals an item that holds a minimum value from a place
secured against theft, i.e., petty theft or taking an unsecured item from the street would not incur the Hadd penalty.
As for non-Muslims being charged with blasphemy for declaring their beliefs, this is not the case. Rather, non-Muslims are allowed to declare their beliefs which Muslims would consider to be heretical or even blasphemous as long as they are said as a proclamation of their own faith, and not uttered as an insult to Islam or other faiths in a hateful way. In many ways, this holds parallels to hate speech or libel laws in many parts of the West
today.
Finally, issues such as a woman’s testimony being unequal to that of a man, or her inheritance being half of a man’s are also somewhat misunderstood, particularly on two levels; the extent to which they apply and the context in which Muslim society operates and the ecosystem in which these laws exist. A mistake that many westerners make in this regard is to imagine those cherry-picked laws being applied in their own society, where most of the other laws are
unislamic. A principle that can be derived here is that God-given laws are not intended to be cherry-picked and mixed in with manmade laws at random. Let us look at some examples to illustrate this point.
It is true that in many common cases, a brother may have double the inheritance of a sister, or a son may have double the inheritance of a daughter, or that the husband may inherit more from his wife than she would from him, but it is not true across the board that male relatives inherit more than female ones. Similarly, while it is true that in many common cases, a man’s testimony is required (such as for the hudud), or in the absence of which the testimony of two women is sought (such as in financial matters), it is also not true across the board. In fact, the Islamic rulings regarding these issues are quite detailed, e.g., there are actually cases where a woman inherits equal to an equally closely related man (a mother inherits equal to a father, or the maternal siblings of a “kalaalah” inherit equal to each other), or even more than him (the paternal grandmother takes precedence in inheritance over the maternal grandfather), just as there are cases where a woman’s testimony is treated equal to a man’s (such as when a man accuses his wife of extramarital relations) or even supersede his testimony (such as in matters concerning women like menses, breastfeeding, birth, etc). More importantly however, these Islamic laws are based on the roles that women primarily dominate in a Muslim society (all societies in fact, with the past few decades in the western world being the glaring exception), i.e., being occupied with managing the internal affairs of the home and not bearing the burden of financial responsibility for the household.
With this context in mind, it comes as no surprise that men, who must provide for the maintenance of their households should receive a greater portion of inheritance (since they have a greater responsibility to spend on their womenfolk while women may keep their money for themselves). This would perhaps not make so much sense to a westerner who has experienced a society where spouses split the grocery bill and each pay half the rent, nevertheless, under Islamic law, this responsibility falls squarely on the shoulders of the husband, and thus Islamic
laws must be understood in that context. Furthermore, since they are more engaged in financial transactions, it is expected for them to have a more reliable understanding of financial dealings as compared to women who may or may not be fully familiar with many conventions of the business world. Similarly, it is more likely that a woman, being the physically weaker and more trusting sex, could be duped or coerced into giving false testimony, which is why a man’s testimony is required for hudud punishments.
Criticisms based on a projection of western world views and historical baggage onto Islamic societies
There are some matters related to Islamic law which face criticism not due to misconceptions about the laws themselves, but because the critic has their own worldview and historical baggage, for example, questions relating to slavery in Islamic history, corporal punishment, restrictions on sexual behavior, gender equality, freedom of speech, etc. A detailed analysis of these topics is left for other articles (links), but some brief comments are as follows.
It is quite commonly the case that parallels between the criticized Islamic law and western laws exist, the only difference being where the line is drawn or the context in which such laws come into effect. For example, while many western critics may consider Islamic law to be barbaric since it allows for corporal punishment, countries like the United States itself use the death penalty when heinous crimes have been committed. As a much lesser form of corporal punishment, caning was a perfectly legal method of disciplining children in UK schools up to the early 21 st century. Many countries have modesty laws that prevent “indecent exposure”, with the only difference to Islamic countries being the extent to which a couple would need to go before it being classified as indecent. Similarly, many western countries have had or still have restrictions on freedom of speech. Disrespecting the national flag is illegal in France and disputing historical claims about the Holocaust as well as “antisemitic speech” are illegal in Germany. Supporting communism during the Cold War was illegal in the United States. There are even laws for what names one cannot give their children or what pronouns one cannot use (link). Supporting proscribed organizations is also illegal in many countries. In this context, it seems peculiar that westerners would have reservations about restrictions on free speech under Islamic law.
Gender equality is perhaps the most often raised concern about Shariah. Under Islamic law, men and women have equal worth, but many of their rulings are a function of their different attributes, abilities and roles in society. For instance, women are required to cover more of their body than men are required to, because of the beauty that Allah has created them with and the attraction for them that He has put in the gaze of men. Women are placed within the guardianship of their father or husband because Allah has created men to be bodily as well as financially responsible for the well-being of their womenfolk. This guardianship then necessitates that they travel with the consent of their guardian and not disobey them within reasonable bounds so that they can protect them and so that the household can run smoothly. Men are allowed to marry multiple wives, whereas women can only have one husband as this aligns with the nature God has created us with. (More on this here).
Anecdotal evidence suggests that when the rights of women under Islam are explained to western women, many say they wish they could be afforded such rights in their own communities. This is perhaps the reason why most converts to Islam in America today are women (link). Islam aligns with their inner nature; if Islam had been so unjust to women, the statistics would not show a majority of converts to Islam being women. Questions on slavery in Islam from a western audience are usually based on assumptions made as a consequence of historical baggage, i.e., the western memory of transatlantic slavery, one of the cruelest forms of slavery the world has seen. Slavery under Islamic law does not have many of the features that this transatlantic slavery did, and for all intents and purposes, was closer to indentured servitude than slavery as is perceived in the English language. You can read more on this here (link).
In summary, many misconceptions abound regarding the Shariah and its application historically and around the world today. This article attempts to very briefly shed some light on the reality of these misconceptions, which may be due to the diffusion of culture and politics into the laws of “Islamic countries” or due to caricatures of Shariah presented in popular media. Further, this article attempts to provide rational arguments for why Islamic law has certain rulings that modern western society finds objectionable. Also, it points out where some aspects of Islamic
law are criticized by westerners despite laws of a similar nature also existing in their own legal systems, even if the context or extent at which the restrictions come into play may be different.
For detailed articles on each of the topics mentioned in this article, check the links provided and stay tuned for our upcoming content.
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