THE DIVINE LAW: A CONTROVERSIAL SUBJECT
All religions are designed to teach us how to live,
joyfully, serenely, and kindly,
in the midst of suffering.
Part I: Clearing the Cobwebs
Sharia, the Divine Law of Islam and Mohammed, is frequently misunderstood. It is accused of many ills, without regard to a deeper understanding of what it really is. Before we debate anything, however, wouldn’t it be better to get the facts of the matter? Below is a very simple introduction to this subject, offered in the hope that it will shed some light on the issue.
I know that Sharia has by now become a loaded term and is a subject on which lots of people have preconceptions. I merely ask that readers be patient, preserve an open mind, and withhold judgment until they have reached the end of this article. What I want to do is encourage the reader to think deeply and dispassionately about a subject too often condemned to empty slogans.
God's “finger” inscribing the Tablets in The Ten Commandments (1956).
What is Halakha?
Perhaps we need to understand what Halakha, the Divine Law of Moses, is, before we can broach the question: “What is Sharia?” My source for the following is Wikipedia:
Halakha ... is the collective body of Jewish religious laws derived from the Written and Oral Torah...
Judaism classically draws no distinction in its laws between religious and non-religious life... Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life. Halakha is often translated as “Jewish Law”, although a more literal translation might be “the path” or “the way of walking”. The word derives from the root that means to go or to walk.
Historically, in the diaspora, halakha served many Jewish communities as an enforceable avenue of civil and religious law. Since the Age of Enlightenment, emancipation, and haskalah in the modern era, Jewish citizens are bound to halakha only by their voluntary consent. Under contemporary Israeli law, however, certain areas of Israeli family and personal status law are under the authority of the rabbinic courts and are therefore treated according to halakha. Some differences in halakha itself are found among Ashkenazi, Mizrahi, Sephardi, and Yemenite Jews...
The name “halakha” is derived from the Hebrew halakh ... meaning “to walk” or “to go”. Taken literally, therefore, “halakha” translates as “the way to go” rather than “law”. “Halakha” is used to refer to a single law, the corpus of rabbinic legal texts, or to the overall system of religious law...
Halakha constitutes the practical application of the 613 mitzvot (“commandments”, singular mitzvah) in the Torah, as developed through discussion and debate in the classical rabbinic literature, especially the Mishnah and the Talmud (the “Oral law”) and as codified in the Mishneh Torah or Shulchan Aruch (“Code of Law”).
The halakha is a comprehensive guide to all aspects of human life, both corporeal and spiritual. Its laws, guidelines, and opinions cover a vast range of situations and principles... They cover what are claimed to [be] better ways for a Jew to live, based on what is not stated, but has been derived from the Hebrew Bible.
Because halakha is developed and applied by various halakhic authorities rather than one sole “official voice”, different individuals and communities may well have different answers to halakhic questions.
Moses delivering the Ten Commandments to his people (same movie, later scene).
What is Sharia?
Now please read the same text substituting “Sharia” for “Halakha” and applying other necessary changes:
Sharia ... is the collective body of Islamic religious laws derived from the Written Koran and the Oral Koran (the words and deeds of Mohammed, also known as the Way of the Prophet)...
Islam classically draws no distinction in its laws between religious and non-religious life... Sharia guides not only religious practices and beliefs, but numerous aspects of day-to-day life. Sharia is often translated as “Islamic Law”, although a more literal translation might be “the path” or “the path to a wellspring”. The word derives from the way to a waterhole.
Historically, in the Islamic world, Sharia served many Moslem communities as an enforceable avenue of civil and religious law. Since the Age of Enlightenment, emancipation, and globalization in the modern era, Moslems in most countries are bound to Sharia only by their voluntary consent. Under contemporary Islamic law, however, certain areas of family and inheritance law are under the authority of the Islamic courts and are therefore treated according to Sharia. Some differences in Sharia itself are found among the four Sunni and one Shi’ite schools of law...
The name “Sharia” is derived from the Arabic sharia ... meaning “pathway to be followed”. Taken literally, therefore, “Sharia” translates as “the way to go” rather than “law”. “Sharia” is used to refer to a single law, the corpus of Islamic legal texts, or to the overall system of religious law...
Sharia constitutes the practical application of the commandments in the Koran, as developed through discussion and debate in the classical scholarly literature, especially with the aid of the Way of the Prophet, and as further supported by Analogy and Consensus.
The Sharia is a comprehensive guide to all aspects of human life, both corporeal and spiritual. Its laws, guidelines, and opinions cover a vast range of situations and principles... They cover what are claimed to [be] better ways for a Moslem to live, based on what is stated in and has been derived from the Koran.
Because Sharia is developed and applied by various Islamic authorities rather than one sole “official voice”, different individuals and schools of law may well have different answers to Sharia questions.
I hope this brief exercise has demonstrated that Halakha and Sharia do not have different goals. Certainly they are not identical, but neither are they entirely at odds. Both are religious legal systems socially, and a set of divinely ordained rules to be followed privately. If anything, Islamic Divine Law is less stringent and more lenient than Jewish Law in many respects. What is the difference betwen a faithful Jew who wants to live his religion properly and a faithful Moslem who wants to do the same?
Is the Koran a Law Book?
If Sharia is based on the Koran, what are the legal injunctions of the Koran? Various authorities have given different estimates for Koranic verses dealing with legal matters. Depending on the interpretation, some claim as few as 80 and some, 220 verses. If we accept the larger figure, this constitutes 3.5 percent of an approximately 6236-verse text.
What immediately springs out from this is that the Koran is not a legal text. It is a book of religion and ethics, not a book of law. Hence, human intervention is indispensable for achieving a codified legal system. There are simply not enough precepts in the Koran to build up a legal framework without human agency. God revealed the Koran—the rest is man’s work. I’ve said this before: Islamic law developed because it was deemed proper to have laws based on Godly ethics. (The Secret of Islam (2003), p. li.) As the noted scholar Joseph Schacht pointed out, in early times there were no known punishments for such things as imbibing alcohol, and people were merely exhorted to change their ways for the better. Moreover, most of those verses considered to be legal in nature deal with family and inheritance law.
In Islamic countries, Sharia was supplemented by customary law (urf) in many respects, simply because it was insufficient on its own. (To give a simple example from contemporary life, you will find nothing about traffic rules and regulations in the Sharia.)
Furthermore, there was never a church or a clergy, and thus never a theocracy, in mainstream Islam. As the famed French orientalist and sociologist Jacques Berque insisted,
I defy anybody to find an example in Islamic history of a faqih (a specialist in Muslim law) holding power. The Umayyad Caliphs, the Abbasid Caliphs, the Mamlukes, all masters of war, and the Ottoman sultans, the solemn and conquering Asiatics, none of them were faqihs!... But, seriously, religious power has only been held, falteringly, by sects: the Hashashiyyin ('assassins') or the Qarmatians. Mainstream Islam has never experienced direct political power from religion.
(Quoted in François Burgat, Face to Face With Political Islam, London: I.B. Tauris, 2003 , p. 133. Emphasis added.)
Rulings Are Subject To Change With Time
Further, as the 19th-century Ottoman attempt at codification known as the Majalla notes, “rulings are subject to change with time.” Rulings can be divided into essential and secondary. For essential or primary rulings (nass, usul), such as Koranic verses or Prophetic Traditions, the wording cannot change but their interpretation can. For secondary rulings (furu’), both the wording and the interpretations can change.
The Prophet told his Companions:
You live in such a time that if any of you abandon even a tenth of what you are enjoined, you will be ruined. But a time will come when, if a person fulfills only a tenth of what is enjoined, they will be saved.
(Tirmidhi, Book 34: Fitan (Sedition), Section 79, No. 2267; an English version is here. See also Juynboll, Enc. Canonical Hadith, p. 436.)
Furthermore, according to the Koran, “For every time there is a judgment” (13:38). This proves that rulings are subject to change with time.
On this basis, the Master said of modest dress: “We can’t dress them up. So we have to dress up our eyes.” (In other words, “see no immodesty.”) Of the ruling that a thief’s hand should be cut off (5:38), he said: “This can’t be done in this day and age. We’re going to understand that as cutting off his hand from stealing.” That is, take measures to prevent them from stealing again.
(Interestingly, the same punishment is found in the Old Testament—though for a different crime. Deuteronomy 25:12—“you must cut off her hand. Show no pity.”)
I hope this has demonstrated that the Sharia issue is not as cut-and-dried as some people think it is. Sharia is not the law in all Islamic countries, nor is it the law at all in the rest of the world. Sharia is applied in full only in 12 out of 49 Islamic countries, with a population total of 26.6 percent. So roughly three-quarters of Moslems do not live under Sharia as a legal system. But from the religious point of view, Sharia is not primarily a legal system anyway. It is a program for living religiously, where the religion happens to be Islam. It is the do’s and don’ts of the Koran and the Sayings of the Prophet. The reckoning for these is squarely in the afterlife.
It is true that there are countries which practice a harsh and forbidding version of the Sharia. This merely illustrates the fact that, if the wrong hand uses the right means, the right means can work in the wrong way. But to change the Koran itself? That is unthinkable.
Today, in most of the world, Sharia is binding on Moslems only by their voluntary consent. It furnishes guidelines for conduct, such as abstention from alcohol, gambling, and eating pork. It also details how religious observances are to be fulfilled. These are the essentials of religion that cannot be abrogated. This is a covenant between God and oneself: retribution, if any, belongs to the afterlife. As for the misuse or abuses occurring in certain countries, Moslems in general can neither be blamed for them, nor can they be enlisted for serving other people’s agendas of Islam-bashing. Everyone has their own life to live, and life, as you may have noticed, is short. The many cannot be held responsible for the misdeeds of the few.
In fact, the case can be made that Moslems today are cast in the position of the earliest Companions in Mecca. There was then no legal system, no rulings of punishment. They believed out of their love and respect for the Prophet, and they obeyed him not out of any legal obligation, but because they had faith in his message. Today we may have come full circle, and are now back in some respects at that point of origin. In an age when the law has become a secular legal code in most nations, the Divine Law is a set of obligations from God which every private individual is free to follow—or not, if that is one’s wish. It is not socially enforceable, and its only sanctions are divine ones.
Part II: The Crux of the Matter
Having—hopefully—cleared away at least some of the cobwebs surrounding the debate, let us take a closer look at what is really involved when we speak of the Divine Law.
The Divine Law as Law
This is the most obvious level, because it is stated explicitly in the English translation of the term. For example, alcohol and gambling are prohibited, even while recognizing that there may be some benefit in them (2:219). Alcohol can relieve stress, make you mellow, and assist socializing. And you can sometimes win when you gamble. But: alcohol is a universal solvent for organic matter, and from the moment it is imbibed, there is not one organ it touches that it does not harm during its passage through the body.
Plus: our aim should be to reach higher consciousness. Yet not only does alcohol not help us achieve this, it actually prevents it, because it dulls the senses. The Arabic name for wine (the most widely used form of alcohol at the time the Koran was revealed), khamr, derives from the same root as khimar, veil. So it veils the senses, clouds consciousness, and deadens wakefulness. (The Prophet said, “Every intoxicant is khamr (wine) and every intoxicant is forbidden.”)
As for gambling: lucky streaks never last. Sooner or later, the house wins and you lose. This is a mathematically established fact. It results in the ruin of the family, of friends whom you can’t pay back (and thus of friendship), and ultimately may culminate in suicide.
The Divine Law as Ethics
All law is predicated on ethics, on morality. Law is the codification of ethical principles, and the assignment of incentives or disincentives to them. For instance: “Do not kill yourselves or others” (4:29). What is this but the Commandment: “Thou shall not kill”? “He who saves one human, saves the world entire. And he who kills one human, kills the world entire. We have informed the Jews of this in their book” (5:32). And indeed, in the Babylonian Talmud (Tractate Sanhedrin, 37a), as well as in the Jerusalem Talmud (Tractate Sanhedrin, Order: Damages, 4, 5), we find the same thing.
Why is killing a human being like killing all humanity? First, because any human being represents all of humanity, just as every cat represents all cat-dom. Second, because there is a divine spark, a divine secret, in every human being that makes it sacrilegious to murder anyone. And third, because God made man in His own image, both according to the Prophet and the Torah.
While secular laws are ostensibly made without regard to religious laws, they actually rest on the latter in their lower strata. Is there any code of law, whether secular or religious, where murder is condoned?
Another point: can we achieve higher consciousness without ethics? No, we cannot. Because ethics is the foundation on which the edifice of superconsciousness rests. We cannot have the superstructure without the substructure. That is why all those prophets were always preaching ethics. And they all preached the same thing: earlier versions of God's law.
This leads to an interesting conclusion. Because Islam recognizes all prophets before the Prophet up to and including Jesus, a Moslem is also implicitly a follower of Jesus, a follower of Moses, and the follower of other prophets who are and are not explicitly named in the Koran. The only difference is that of following the final, universal version of God's law, wherein everything harmful to human beings has been called a sin, and everything beneficial, a virtue.
The Divine Law as Love
Here is an average perception of what the Master taught:
Law and justice exist because of conscience, and conscience exists because of love. If you love someone, you cannot violate that person’s rights. And that’s what the Divine Law is all about. It gives you the guidelines of how to behave as you would if you loved that person. I have seen no one else who preaches this fundamental fact.
(Bayman, The Station of No Station (2001), p. 17. Emphasis added.)
This is the essence of the whole enterprise we call the Divine Law. I know this is what the uninformed mentality will find most difficult to accept, so here are some examples.
(The Golden Rule:) No one of you is a believer until he desires for his brother what he desires for himself. (Tradition of the Prophet)
You will not enter Paradise until you believe, and you will not believe until you love one another. (Tradition)
Do not spy on, nor backbite one another. Would any of you like to eat the flesh of your dead brother [or sister]? You would find it abhorrent. (49:12)
Do not gossip. If your brother/sister has that attribute, it is backbiting. If they do not, it is slander. (Tradition)
When should a worker be paid his due? Before the sweat on his brow has dried. (Tradition)
There is a key to everything. The key to Heaven is to love the poor. (Tradition)
Let not a people ridicule other people, for they may be better than them. Nor any women ridicule other women, for they may be better than them. Do not mock one another, nor call each other names. (49:11)
Do not lie (deceive others). (22:30)
Do not say what you will not do (i.e., Keep your promise). (61.3)
Give to your relatives, to the poor, and to travelers in need. (17:26)
Kind words and forgiveness are better than charity followed by injury. (2:263)
God enjoins justice, and doing good to others. (16:91)
Do not sow discord in the land. (7:57)
Show kindness to parents, and to relatives and orphans and the poor, and speak kindly to people. (2:84)
Do not repulse anyone who seeks your help. (93:10)
Did you know there were such verses in the Koran? Is there anything objectionable in any of the above?
The Koran cannot be altered. But then, it doesn’t need to be, for it is not a book of law. It is a book of religion and ethics . The Divine Law—which is based on the Koran and the Way (example) of the Prophet—attempts to order human relations so that there is no cause for enmity to arise between human beings, so that they may live happily ever after at peace with each other. Anything other than that is a misunderstanding or outright slander if claimed by a non-Moslem. It is downright ignorance if asserted by a Moslem.