IB World Religions 5.6.3. Shari'ah and Qanun: Divine Law, Secular Law and Their Frontier Notes

5.6.3. Shari'ah and Qanun: Divine Law, Secular Law and Their Frontier

Shari'ah and fiqh

1. Muslims use shari'ah to mean the path God has laid down for human life, reaching worship, family, money and public order. The root sense of the word is the path leading to water, and it names divine guidance rather than any one book of rules.
2. What jurists produce from that guidance is fiqh (understanding), the human work of deriving rulings from the Qur'an and the Sunnah. Muslims hold shari'ah to be perfect and fiqh to be fallible, which is why the four Sunni madhhabs and the Shi'ah Ja'fari school can differ without ceasing to be Islamic.
3. Classical fiqh sorted every act into five categories, from obligatory through recommended, neutral and discouraged to forbidden. Only a small part of that scheme was ever enforceable in court, and most of it speaks to conscience instead.
4. Qanun is the Arabic word, borrowed from Greek, for statute law issued by a ruler or a legislature. Muslim rulers used it for centuries to settle matters the jurists had left open, such as taxation, land tenure and the policing of markets.
5. The pair are therefore not simply religion set against secularism. Ottoman sultans issued qanunnames while shari'ah courts sat in the same cities, and each body of law was understood to have its own work.
6. The frontier between them is where the modern argument sits. Muslims disagree about how much of fiqh a state should enact, who may revise it, and what should happen when a statute and a classical ruling point different ways.

Qanun and the modern state

1. Codification changed the relationship. The Ottoman Mecelle of 1869 to 1876 put Hanafi civil rulings into numbered articles on a European model, so a judge consulted a statute rather than weighed a tradition.
2. The Tanzimat reforms then set up commercial and criminal courts running on French derived codes, leaving the shari'ah courts with family matters. Colonial administrations in British India, Egypt and Algeria reached much the same division.
3. That division is still the ordinary arrangement. Most Muslim majority states run codes of European ancestry for crime, contract and administration, while keeping a religiously grounded law of personal status for marriage, divorce, custody and inheritance.
4. The states at the edges are the ones usually noticed. Saudi Arabia long applied uncodified Hanbali fiqh through the judgement of individual scholars, and issued its first written personal status law only in 2022.
5. Iran since 1979 has legislated through an elected assembly whose bills a Guardian Council checks against Islamic criteria. Turkey took the opposite route in 1926, replacing Islamic family law with an adapted Swiss civil code.
6. Between the edges lie plural systems. Malaysia and Nigeria run federal civil courts alongside state shari'ah courts binding only on Muslims, and Indonesia sends Muslim family cases to religious courts while only Aceh province applies Islamic criminal law.

Family law across states

1. Family law is where the two systems touch most people, and it is the field states have been least willing to secularise. It is also where reformers have worked hardest.
2. Reform has usually been argued from inside the tradition. Legislators have used talfiq, the combining of rulings from different madhhabs, and maslahah (public interest), to justify codes no single school would have produced.
3. Tunisia's Code of Personal Status of 1956 went furthest, prohibiting polygamy outright and sending all divorce through the courts. Its drafters argued the Qur'anic condition of treating co-wives equally cannot be met in practice, while other scholars reply that a permission the Qur'an grants is not a state's to withdraw.
4. Morocco's revised Mudawwana of 2004 raised the marriage age to eighteen, made polygamy conditional on a judge's consent, and replaced the husband's guardianship with joint family responsibility. Religious scholars sat on the drafting commission, and it was presented as a reading of the sources.
5. Egypt's khul' law of 2000 lets a wife end a marriage without her husband's agreement if she returns her dower, on the authority of a hadith about the wife of Thabit ibn Qays. Supporters called it a neglected right recovered, and opponents argued it loosened the family.
6. Inheritance has proved hardest to move, since the Qur'an fixes shares directly, including a daughter's half share against a son's. Tunisia's proposal of equal shares in 2018 was not enacted, and reformers have worked instead through lifetime gifts and bequests.
7. In India, Muslim personal law runs under an act of 1937, and instant triple talaq was voided by the Supreme Court in 2017 and criminalised by parliament in 2019. Some Muslim organisations welcomed that as an abuse removed, while others read it as state interference in a religious community.

Votes, schools and commerce

1. Women's suffrage arrived through qanun rather than fiqh, since classical law had no ballot to rule on. Turkey enfranchised women in 1934, Pakistan in 1947, Iran in 1963, and Saudi Arabia for municipal councils in 2015.
2. Arguments on both sides were made in religious terms. Advocates cited the bay'ah (pledge of allegiance) the Qur'an records the Prophet taking from women and the instruction to conduct affairs by shura (consultation), while opponents cited hadith about leadership.
3. Education was contested along the same lines. Muhammad Abduh and other Egyptian reformers argued from the hadith that seeking knowledge is a duty on every Muslim, and Egypt opened state schools for girls from the 1870s.
4. The dispute has not closed. Malala Yousafzai was shot in 2012 by Pakistani Taliban gunmen who claimed schooling girls was un-Islamic, and scholars across the schools condemned the attack as contrary to Islam.
5. Commercial law passed almost entirely to qanun. Most Muslim majority states adopted French or English commercial codes, so companies, shipping and insurance run on rules the classical jurists never addressed.
6. States handle that gap differently. Egypt made the principles of shari'ah the chief source of legislation in 1980, and its Supreme Constitutional Court reads that clause to bind lawmakers only to rulings which are explicit and certain.

Islamic banking

1. Islamic banking grew from one Qur'anic prohibition, that of riba, usually translated as usury or interest. Muslims read Surah 2 verse 275 as permitting trade and forbidding riba, and jurists extended the ban to any guaranteed increase on a loan.
2. Two further prohibitions shape the field. Gharar (excessive uncertainty) rules out contracts whose object is unknown, and maysir (gambling) rules out pure speculation, which is why conventional insurance and many derivatives are widely held impermissible.
3. The answer is to replace lending with trade and partnership. In murabahah the bank buys goods and resells them at a disclosed mark-up, in mudarabah one party supplies capital and the other labour, and in musharakah both supply capital and share profit and loss.
4. Sukuk, often called Islamic bonds, give holders a stake in an asset and its income rather than a debt paying interest. Takaful replaces insurance with a mutual fund whose members undertake to indemnify one another.
5. The modern institutions date from the 1960s and 1970s, beginning with the Mit Ghamr savings project in Egypt, Malaysia's pilgrimage fund Tabung Haji and the Islamic Development Bank of 1975. Banks retain shari'ah boards of scholars to certify products.
6. Muslims disagree about how much of this is substance. Scholars including Muhammad Taqi Usmani argue that some murabahah practice reproduces interest under another name, while defenders answer that a real sale carrying real ownership risk is a different contract.

Blasphemy and shirk

1. Classical jurists treated insult to God, to the Qur'an or to the Prophet Muhammad as a grave wrong, though they differed over the penalty and over whether repentance cancelled it. Shirk, associating a partner with God, is named in the Qur'an as the sin not forgiven in one who dies in it, and most jurists left it between the person and God.
2. Modern blasphemy statutes are qanun in form. Pakistan's sections 295-B and 295-C, added in 1982 and 1986, make defiling the Qur'an punishable by life imprisonment and insulting the Prophet punishable by death.
3. How they operate is contested inside Pakistan. Human rights organisations and Pakistani lawyers record accusations growing out of property disputes and mob pressure, and the Supreme Court acquitted Asia Bibi in 2018 after eight years under sentence of death.
4. Muslim positions differ sharply. Some scholars and parties defend the statutes as protection of what a Muslim society holds sacred, the Council of Islamic Ideology has pressed for penalties against false accusers, and other scholars argue the Qur'an lays down no worldly punishment for unbelief.
5. Shirk shapes law most visibly in Saudi Arabia, where the state's Hanbali and Wahhabi inheritance has meant restrictions on shrine visitation and on practices judged to approach veneration of the dead. Sufi and Shi'ah Muslims, whose devotion at tombs and to the imams that tradition reads as shirk, reject the classification.
6. The wider argument turns on freedom of belief. Defenders appeal to public order and the protection of religion, while opponents, Muslim and non-Muslim alike, appeal to the Qur'anic statement that there is no compulsion in religion.