A Translation of a Section from Shaykh ‘Alī Jum’ah Muḥammad’s al-Madkhal Ilā Dirāsah al-Madhāhib al-Fiqhiyyah (p. 379-382)
The Sources of Islamic Legislation
The word (الشَرِيْعَةُ) “sharīcah” appears in the language [conveying] two mental concepts:
- That it is a straight path; an example of this mental concept being His, Exalted is He, statement: ﴾ثُمَّ جَعَلْنٰكَ عَلٰى شَرِيْعَةٍ مِّنَ ٱلْأَمْرِ فاتَّبِعْهَا وَلَا تتَّبعْ أَهْوَآءَ ٱلَّذِيْنَ لَا يَعْلَمُونَ﴿ “Then We placed you on a sharīcah [straight path] with respect to the affair, so follow it, and do not follow the whims of those who do not know.” (al-Jāthiyah, Āyah 18)
- A place of running water that one goes to for drinking; an example being their statement: (شَرِعَتِ الإِبِلُ إِذَا وَرَدَتْ شَرِيعَةَ الْمَاءِ) “The camels took water into their mouths when they came to the watering place [sharīcah al-mā’].” Furthermore, the word “sharīcah” is used in the argot and technical terminology of the Muslim Jurisconsult for those laws which Allāh has legislated for His slaves. These laws are called “sharīcah” because they are straight and perfectly composed with no deviation in their methodical arrangement.
at-Tashrīc (التَشْرِيعُ) linguistically is classified as the verbal-noun of sharraca (شَرَّعَ) [to legislate, make laws], with a tashdīd on the ‘ra’, [and is] derived from sharīcah.
at-Tashrīc in technical usage is the composition of rules, and the explanation of the systems which individuals and groups conduct themselves [according to].
The Islamic sharīcah is a heavenly tashrīc (i.e. it is something from Alāh, Exalted and Sublime is He).
The distinction between it [i.e. heavenly tashrīc] and those forms of tashrīc which human beings compose is:
- It is a way of life by which worship is rendered to God. Following its commands is an act of obedience for which reward is given, while violating its prohibitions is an act of disobedience for which punishment is given. The repayment of this act of contradiction may establish worldly punishments for an individual, however the reward and punishment is [really] tied to the Hereafter. On the other hand, secular legislation is not concerned with what is in the hearts.
- The Islamic sharīcah seeks to lead human beings upwards and make them pure of heart and high-minded. As for secular lawmaking, it seeks to regulate human society but not [to the extent of] intervening [with a view] to elevate human character.
- Islamic lawmaking commands and prohibits: it commands good and forbids that which is detestable, while secular lawmaking solely seeks to prohibit, and only incidentally seeks the doing of good.
- [In] the Islamic lawmaking one is accountable for actions of the body and heart, whereas secular lawmaking only takes physical actions to account.
The Islamic Sharīcah in Relation to Other Laws:
(1) The Islamic sharīcah is a system emanating from a doctrine (caqīdah1). This doctrine regards the Creator of the universe as utterly unique, and considers His purpose with His creation [to be] the improvement of the world, a thing achieved by sending Messengers and revealing books. It considers it a duty upon the human being to bind themselves to the Word of Allāh.
Those who accept the truth achieve the good fortune of both abodes, while the one who deviates from the truth has shown ingratitude to the favors of Allāh upon them. This doctrine (i.e. the existence of a God, the sending of Messengers, the revelation of books, and being bound by the limits [set by] Allāh) is firmly bound to the acceptance of a Last Day which is in the Hereafter, and in which there is life everlasting, [as well as] a reckoning, reward and punishment.
The sum of this doctrine springs forth [in the form of] a Muslim’s imān in their Prophet, the Book of their Lord, and the commands and prohibitions that revelation details as being the will of Allāh for His creation, and this [i.e. the Prophet, the Divine Book, and the commands and prohibitions] determines what is necessary for a human being to carry out and [that which they should] refrain from.
(2) The Islamic sharīcah has abrogated jurisprudential aspect of the preceding sharā’ic (sing. sharīcah), while acknowledging the truth that exists in those sharā’ic with respect to caqīdah, and detailing the extent of distortion within those varying caqā’id (sing. caqīdah) from the original which Allāh intended (i.e. pure monotheism).
(3) The Islamic sharīcah has laid down a general outline for lawmaking, and commands that which preserves public order and humanity, like:
(a) Protection of the Self
This is by outlawing of murder and injustice.
(b) Protection of the Intellect
This is through outlawing intoxicants and narcotics.
(c) Protection of the Religion
This is by means of outlawing irtidād and kufr, while allowing diversity among those who affirm revelation ([i.e.] the people of the book).
(d) Protection of the nobility and honor of human beings.
(e) The protection of people’s wealth and property.
Islam’s preservation of these five is considered amongst the goals of those obligated to follow the sharīcah, as will soon be discussed; nevertheless, at the same time, it presents this public order ordained by Allāh [as something] for all human beings [and something] that none of them should leave.
This is the mental conceptualization of Islām persisting through the centuries, and [it is this] which Ibrāhīm, peace be upon him, was described with. He, Exalted is He, said:
﴾مَا كَانَ إِبْرٰهِيْمُ يَهُودِيّا وَلَا نَصْرَانِيّا وَلٰكِن كَانَ حَنِيْفًا مُّسْلِمًا ۖ وَ مَا كَانَ مِنَ ٱلْمُشْرِكِيْنَ﴿
“Ibrāhīm was not a Jew, nor a Christian, rather he was a Muslim monotheist; and he was not from amongst the polytheists.”(Āli Imrān, Āyah: 67)
And it is the mental concept of His, Exalted is He, statement:
﴾إِنَّ ٱلدِّيْنَ عِندَ اللهِ ٱلْإسْلٰمُ﴿
“Verily, the way of life in the sight of Allāh is Islām,” (Āli Imrān, Āyah: 19)
and:
﴾وَ مَن يَبْتَغِ غَيْرَ ٱلْإِسْلٰمِ دِيْنًا فَلَن يُقْبَلَ مِنْهُ وَهَوَ فِى ٱلْأَخِرَةِ مِنَ ٱلْخٰسِرِينَ﴿
“Whoever seeks other than Islām as a way of life, then it will never be accepted from them, and in the Hereafter they will be from the losers.”(Āli Imrān, Āyah: 85)
(4) In the shade of this general outline that Islām has defined and whose violation is by no means acceptable, it is possible, within a vast plane of allowance, to alter those laws built upon benefits left open to man by God, as well as those built upon custom.
It is not permissible to encroach upon those permanent laws guarding these five universals considered to be the source of public order. Therefore, it is impermissible [to implement] any form of legislation legalizing murder, khamr, extramarital sex, interest, stealing, injustice, false testimony, lying, oppression, violating the rights of human beings by torture, etc., or infringement upon people’s honor, wealth, and property.
On the contrary, the system of Democracy, under the claim of human freedom, makes it possible to establish [laws allowing] the desecration of a person’s honor, as long as it is by mutual agreement. And this is the great difference between the committed legislation that maintains these constants which Allāh, Pure and Exalted is He, has established in His revelation, in His Book, and in the Sunna of His Prophet, may peace and blessings of Allāh be upon him, and between the attempts of others to legislate for themselves in accordance with what they imagine [to be] beneficial [and] proper for mankind, or [what they imagine will] bring human beings joy and the means [to acquiring joy].
The sharīcah is the Word of Allāh, Exalted is He, which He revealed to His Messenger, may peace and blessings of Allāh be upon him. [Now,] the Prophet, may peace and blessings of Allāh be upon him, is the possessor of two [types of] revelation: the Qur’ān, and the Sunna that he expressed, did, or affirmed.
The Qur’ān is a revelation from Allāh, Pure is He, while the Sunnah is a revelation that is not recited (i.e. we don’t recite it in ṣalāh); however, anything emanating from the Prophet is a proof just like the Qur’ān. The decree of Allāh, the Exalted, is His address [in the form] of a demand or choice that is connected to the actions of those obligated to follow the sharicah.
This means that Allāh is the one who makes laws, and that the Qur’ān, Sunnah, and remaining evidences only point to that Divine address.
Footnote 1:
Just like camal (actions) are the earnings of the limbs, ictiqād are the earnings of the heart. The camal of the heart is an ictiqād, generally, since everything that the heart binds itself to is called ictiqād and caqīdah, irrespective of it being true or false. Thus, no heart is free of an caqīdah: the mu’min’s caqīdah is imān [i.e. accepting as true what the Prophet has conveyed without], the kāfir’s caqīdah is kufr in accordance with it’s varying causes, and the caqīdah of the atheist who claims that he does not have imān in anything, is that they do not accept any of the principles of imān as being true. (Jāmic al-La’ālī Sharḥ Bad’ al-Amālī Fī cIlm al-Aqā’id. Dār al-Bashā’ir al-Islāmiyyah. p. 14)
