Sharia Dilemma in Egypt Constitution Draft (2013): Never Ending Story

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초록

Sharia literally means a way to the watering-place or a path apparently to seek felicity and salvation. The word occurs only once in the Qur’an and it is used in contradistinction with hawa (whimsical desire). The verse thus reads in an address to the Muslims’ Prophet:Thus we put you on the right way [shari‘atan] of religion. So follow it and follow not the whimsical desire (hawa) of those who have no knowledge. Quran (45-18)In an explanatory note on this verse, ‘Abdullah Yusuf Ali’s translation (first version) reads ‘shari‘atan in this verse is best translated as “the right way of religion” which is wider than the legal provisions which were mostly revealed in the Madinan period, long after this verse had been revealed’.
Since Sharia as a legal code did not exist at the time this verse was revealed, the Quranic reference is to its literal sense of belief in Islam (God’s appointed way) and avoidance of disbelief.
The renowned Qur’an commentator al-Baydawi noted that the reference to hawa in this verse is to the pagan beliefs of the people of Makkah who believed in idolatry and association of idols with supernatural powers. Since Sharia is a path to religion, it is primarily concerned with a set of values that are essential to Islam and the best manner of their protection.
Islam stands on what is known as the five pillars (al-arkan al-khamsah), namely belief in God, ritual prayers, fasting, the hajj (pilgrimage) and giving the poor due (zakah). Faith in God, the manner of worshipping Him and observance of the five pillars of Islam thus constitute the essential concerns of Sharia.
The manner of worshipping God is expounded in that part of sharia which is known as ‘ibadat (devotional matters). Then there is the concern with justice, which is a major preoccupation of Sharia. Justice is concerned with the manner in which God Most High wants His creatures to be treated, expounded mainly under the general heading of mu‘amalat (civil transactions). One of the areas of primary concern to Sharia is protection and advancement of the five essentials (al-daruriyat al-khamsah), namely of life, religion, property, intellect and family.
Two other derivatives of the root word shara‘a (to begin something, to enact) that occur in the Qur’an also confirm the foregoing analysis that the Quranic conception of sharia was essentially theocentric. In one of these verses, it is provided:The same religion has He enacted for you [shara‘a lakum min al-din] as that which He enjoined on Noah and the one we revealed to you and that which We enjoined on Abraham, Moses and Jesus, namely that you should remain steadfast in religion and make no divisions therein. (42:13)Shara‘a in this verse refers, according to Qur’an commentators, to ‘belief in the Oneness of God (tawhid), prayer, fasting, alms giving and hajj’. For these were in common between all of the scriptures revealed to those Prophets.
Thus it is noted that Sharia in this verse could not be a reference to a legal code as the laws revealed to these various Prophets were not the same. The word thus refers basically to belief and dogma and not to law as such.
The bulk of the Quran, that is, 85 out of the total of 114 surahs, was revealed in Makkah and all of it focused on Islam as a faith and structure of moral values. Law and government did not feature in the Qur’an during the Makki period. The legal rulings of the Quran are of a limited scope and are decidedly peripheral to its dogma and moral teachings. The Muslims’ Prophet himself consistently referred to the Quran as a source of authority and only in his later years in Madinah he did refer to his own teachings and example (Sunnah) as a guide to conduct.
The words sharia and fiqh do not occur in the Sunnah in their usual meanings. This can be known, for instance, from the renowned hadith of the Mu‘adh Ibn Jabal: when the Muslims’ Prophet was sending Mu‘adh to the Yemen as ruler and judge, he was asked three questions as to what he would refer to when making decisions in his capacity as a judge! Mu‘adh mentioned firstly the Qur’an, then the Sunnah of the Prophet and then his own considered judgment and ijtihad. There was no reference to Sharia in this hadith nor to fiqh as such.
The word Sharia does not seem to have been used even by the Pious Caliphs (Khulafa’ Rashidun) following the demise of the Muslims’ Prophet, nor have they used its equivalent fiqh in the sense of a legal code. These terminologies emerged much later and consist mainly of juristic designations that found currency when a body of juristic doctrine was developed over a period of time.
The purpose of this analysis is not to doubt or dispute the substance of Sharia or of fiqh but to emphasize that identifying Sharia in the sense of a legal code as the defining element of an Islamic society and state, which became commonplace in subsequent juristic writings, does not find a strong footing in the source evidence.
Islam is a faith and a moral code first and foremost; it stands on its own five pillars, and following a legal code is relative and subsidiary to the original call and message of Islam. The persistent line of emphasis on legalism that has dominated the juristic legacy of Islam and Sharia should therefore be moderated. The overarching Islamic principle of divine unity (tawhid), which requires an integrated approach to values, should not simply be subsumed under the rubric of legality that focuses on the externalities of conduct often at the expense of the inner development of the human person.

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