October 2, 2022

What is shariat?

Knowing the meaning of Shariat is important if we have to read sharia law. In India, Muslim Personal matters are governed by Shariat Law. Application of Sharia law was made on muslim Personal matters by Sharia Act, 1937.   

Indian Courts many times had occasion to discuss the meaning of Shariat and Sharia law. In this article, we are extracting the meaning of shariat as discussed by Indian Court.

Meaning of Shariat

This has been beautifully explained by the renowned author, Asaf A.A. Fyzee in his book Outlines of Muhammadan Law[1],

“What is morally beautiful that must be done; and what is morally ugly must not be done. That is law or Shariat and nothing else can be law.”

But what is absolutely and indubitably beautiful, and what is absolutely and indubitably ugly? These are the important legal questions; and who can answer them? Certainly not man, say the Muslim legists. We have the Quran which is the very word of God. Supplementary to it we have Hadith which are the Traditions of the Prophet- the records of his actions and his sayingsfrom which we must derive help and inspiration in arriving at legal decisions.

If there is nothing either in the Quran or in the Hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principles.

These principles constitute the basis of sacred law or Shariat as the Muslim doctors understand it.

Source of Shariat

There are four sources for Islamic law- (i) Quran (ii) Hadith (iii) Ijma (iv) Qiyas.

Holy Quran is the first source of law. That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran.

According to Justice Bader Durrez Ahmad in Masroor Ahmed v. State (NCT of Delhi) & Another[2]:

“In essence, the Shariat is a compendium of rules guiding the life of a Muslim from birth to death in all aspects of law, ethics and etiquette. These rules have been crystallized through the process of ijtihad employing the sophisticated jurisprudential techniques. The primary source is the Quran. Yet, in matters not directly covered by the divine book, rules were developed looking to the hadis and upon driving a consensus. The differences arose between the schools because of reliance on different hadis, differences in consensus and differences on qiyas and aql as the case may be.”

A word as to the meaning of the expression Shariat. A.A.A. Fyzee (supra), at pages 9-11, describes Shariat as follows:

“Coming to law proper, it is necessary to remember that there are two different conceptions of law. Law may be considered to be of divine origin, as is the case with the Hindu law and the Islamic law, or it may be conceived as man-made. The latter conception is the guiding principle of all modern legislation; it is, as Ostrorog has pointed out, the Greek, Roman, Celtic or Germanic notion of law. We may be compelled to act in accordance with certain principles because God desires us to do so, or in the alternative because the King or the Assembly of wise men or the leader of the community or social custom demand it of us, for the good of the people in general. In the case of Hindu law, it is based first on the Vedas or Sruti (that which is heard); secondly on the Smriti (that which is remembered by the sages or rishis.”

Philosophy Behind Shariat

The Shariat is the central core of Islam; no understanding of its civilization, its social history or its political system, is possible without a knowledge and appreciation of its legal system. Shariat (lit., the road to the watering place, the path to be followed) as a technical term means the Canon law of Islam, the totality of Allah’s commandments. Each one of such commandments is called hukm (pl. ahkam). The law of Allah and its inner meaning is not easy to grasp; and Shariat embraces all human actions.

For this reason, it is not law in the modern sense; it contains an infallible guide to ethics. It is fundamentally a Doctrine of Duties, a code of obligations. Legal considerations and individual rights have a secondary place in it; above all the tendency towards a religious evaluation of all the affairs of life is supreme.

According to the Shariat religious injunctions are of five kinds, al-ahkam al-khamsah. Those strictly enjoined are farz, and those strictly forbidden are haram. Between them we have two middle categories, namely, things which you are advised to do (mandub), and things which you are advised to refrain from (makruh) and finally there are things about which religion is indifferent (jaiz). The daily prayers, five in number, are farz; wine is haram; the addition prayers like those on the Eid are mandub; certain kinds of fish are makruh; and there are thousands of jaiz things such as travelling by air.

Thus the Shariat is totalitarian; all human activity is embraced in its sovereign domain. This fivefold division must be carefully noted; for unless this is done it is impossible to understand the distinction between that which is only morally enjoined and that which is legally enforced. Obviously, moral obligation is quite a different thing from legal necessity and if in law these distinctions are not kept in mind error and confusion are the inevitable result.

Reference

Shayara Bano vs Union Of India (2017)


[1] 5th Edition, 2008 at page 10.60

[2] 2017 (2) ILR (Del) 1329