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Shari’ah and Muslim-Law Culture
Leonid Sykiäinen
Leonid SYKIÄINEN is Professor at the Institute of State and Law at the Russian Academy of Sciences.
Russian scholars in the field of law usually regard Muslim law as being synonymous with the Shari’ah, which in turn is interpreted as a universal system in which the religious basis is not separated in principle from the legal basis. In-depth analysis of this problem, however, makes it possible to draw a rather consistent distinction between the notions of the Shari’ah and Muslim law.
Shari’ah: Religion or Law?
In Islamic tradition, the term Shari’ah is used to describe the path ordained by Allah, which, if followed by the faithful, can lead them to the attainment of perfection, worldly well-being, and access to paradise. For example, in the words of Allah to Man ‘Then we gave thee a clear way in religion. Follow it...’1 the words ‘clear way’ in the translation correspond with the word ‘Shari’ah’ in the Arabic original. The general meaning of this notion becomes clearer in light of the fact that its root ‘sha-ra-’a’ is found more than once in the Qur’an in the sense of to ‘legitimize’ or to ‘decree’ something as being binding.2 Hence the conclusion that the sources of the Shari’ah are the Qur’an and the sunnah – a collection of deeds and sayings attributed to the Prophet Muhammad (hadiths) which embody the divine revelation. At the same time, the general description of the Shari’ah as an aggregate of precepts established by Allah and transmitted to people via the Prophet has become established in Islamic literature.
This raises some questions, however. Precisely which precepts are implied by the Shari’ah? Is it confined to religion or is the Shari’ah something broader? To attempt to answer these questions it is necessary to proceed from the nature of Islam as a whole, about which V. V. Bartold once made this apt observation: ‘Whereas a Christian, in order to meet the requirements of his faith, should ignore himself for the sake of God and his neighbor, law requires a Muslim that he should not, amid his pursuits, forget God, should offer up prayers at prescribed times and give to the poor’3. If we emphasize the words ‘amid his pursuits’ and replace ‘law’ with ‘Shari’ah’ we shall get a rather concise characterization of the Muslim. Indeed, the Shari’ah has never been confined to the dogmatic and cult questions that make up a Muslim’s inner life, his religious conscience. It attaches no less, perhaps even more, importance to everyday matters, the way Muslims behave in respect to each other, to authority and to people of different faiths.
Various trends of Islamic thought and Muslim law schools differ with regard to the contents of the Shari’ah. According to the prevalent view, the Shari’ah is comprised of three main parts – religious dogmas, Islamic ethics and the so-called practical norms. The latter are further divided into worship instructions establishing procedures of the observance of religious duties, and norms regulating all the other aspects of Muslims’ conduct and their secular relationships. It should be underscored that the norms aspect is no mere supplement to Islamic dogmas and ethics, but it is its most important part – to all intents and purposes its core. It is no accident that some authoritative researchers believe that theology is subordinate to law in the Shari’ah,4 or they generally attribute to the Shari’ah instructions that regulate the individual’s behaviour but that have no direct bearing on his religious conscience and inner motivations.
Viewing the Shari’ah as a normative system calls for clearing up the fundamental question of whether the Shari’ah provides for cut-and-dried norms that fit every occasion, and whether it comprises precise and unambiguous rules of conduct for Muslims under all circumstances. There are two main approaches to this problem. The first suggests that the Shari’ah has answers to all the questions and cut-and-dried rules of behaviour for all occasions. Thus it represents a universal, hiatus-free system of norms thoroughly regulating Muslim life. More often than not, the Shari’ah is taken in Islamic regions as just such an all-embracing Muslim law. The same sense is read into the frequently heard expression ‘Shari’ah laws’. Generally speaking, there is a widely held view in my country that the Shari’ah is a pervasive and extremely detailed system of rules of conduct, regulating every step that Muslims take, a system that prescribes everything in advance and leaves them no choice.
This view is not shared by everyone, however. A contrary approach to the problem prevails in the works on the Shari’ah by authoritative Islamic scholars. According to them, the normative …………………… ………….
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