Explaining an Early Definition of Shari’ah

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ 

The following is adapted from a paper by Shaykh ‘Abd al-Ghafur ‘Abd ar-Rahim.  One of the factors which stand against change and reform of Islamic law is the current rigid conceptualisation of some basic terms.  The development of fiqh led to the construing of the terms “diyn”, “islam”, and “shari’ah” in concrete fiqhi terms.  The underlying ethical principles which the concrete fiqhi values embodied became insignificant or of secondary importance.  Consciously or not, this in turn led to the equation of forms and principles, thereby making change extremely difficult.  Any proposed change came to be conceived as undermining the principles themselves embodied in the fiqhi forms. 

The word, “shari’ah” originally referred to the gaps or breaches in the banks of rivers or the like that provided a way for humans or beasts to gain access to water.  The water itself, if it remained permanent and apparent to the eye, was also known as shari’ah.  Compared to the terms, “diyn” and “islam”, the term “shari’ah” is less frequent in the Qur’an, occurring only in four instances.  In all these instances, its literary meaning of elements of “way” and “clarity” are reflected.  In its verbal form, “shara’a” indicates God having Marked a “clear way to be followed”.  The Qur’an Reads: 

سُوۡرَةُ الجَاثیَة

ثُمَّ جَعَلۡنَـٰكَ عَلَىٰ شَرِيعَةٍ۬ مِّنَ ٱلۡأَمۡرِ فَٱتَّبِعۡهَا وَلَا تَتَّبِعۡ أَهۡوَآءَ ٱلَّذِينَ لَا يَعۡلَمُونَ (١٨) 

Then We Put you on the (right) shari’ah: so follow you that (Way), and follow not the desires of those who know not. ― (Surah al-Jatsiyah:18) 

As a noun, the term “shari’ah” refers to this way itself. 

Imam Abu Khaththab Qatadah ibn Di’amah as-Sadusi’s (r.a.) definition of shari’ah, quoted by Imam Abu Ja’far Muhammad ibn Jarir ath-Thabari (r.a.), to explain the term “shari’ah” in t Surah al-Jatsiyah:18, provides a more concrete picture of this way-to-be-followed.  Sayyidina Qatadah (r.a.) defined “shari’ah” as “al-fara’idh wa al-hudud wa al-amr wa an-nahy”.  Dr Joseph Franz Schacht translated this as “the laws of inheritance, the hudud punishments, commands and prohibitions”.  This translation seems to be inaccurate.  Dr. Schacht, here, assigned technical meanings to fara’idh and hudud when he rendered as laws of inheritance and hudud punishments respectively.  As fiqh had not fully developed in its final form by the time of Imam Qatadah (r.a.), who passed away around 118AH, fara’idh and hudud could not have gained their technical meanings.  By then, rather, fara’idh and hudud would still be used in their original meanings of obligatory duties and prohibitions respectively. 

Commenting on the original meaning of the term, “fara’idh”, and how it changed after the development of fiqh, Shaykh Abu Zayd ‘Abd ar-Rahman ibn Muhammad ibn Khaldun al-Hadhrami (r.a.) stated, “Fara’idh in the ahadits, ‘The fara’idh constitute one third of  knowledge’, refers to the obligations imposed  in connection with religious practices, customary practices matters related to inheritance, and other things ...”  He continued, “The application of fara’idh to this particular discipline, or its restriction to the fixed shares was due to the technical terminology created by the jurists when disciplines and terminologies came into existence.  In the early days of Islam, the term, ‘fara’idh’, was used only in a general way. It was derived from ‘fardh’ which literally means to determine or cut.  When used in an absolute sense it referred to all obligatory duties as we have stated.  Such was its original Qur’an and ahadits  usage.” 

Similarly, Imam Taqi’ ad-Din Muhammad ibn ʻAli ibn Daqiq al-‘Iyd (r.a.) noted the difference in the meaning of hudud before and after the final development of Islamic law.  He stated, “... that restricting ‘hadd’ to the fixed punishments ... is a technical usage created by the jurists.  According to the earlier Qur’an and ahadits usage, the term, ‘hadd’ applies to any act of disobedience whether big or small.” 

Another problem with Dr. Schacht’s translation is that “al-fara’idh”, “al-hudud”, “al-amr”, and “an-nahy”, refer to four distinct categories.  There are clear indications that here only two categories are involved, “al-amr” and “an-nahy”, as explanations of al-fara’idh and al-hudud respectively.  Explaining that the existence of different Qur’anic recensions poses no problem as long as they do not contradict each other, Imam ath-Thabari (r.a.) stated, “The shari’ah of Islam, its hudud and fara’idh, are one.” that is, they do not contradict each other.  After explaining shari’ah here in terms of hudud and fara’idh, Imam ath-Thabari (r.a.) went on to elaborate on these terms as nahy, prohibitions; and amr, commands; respectively: “If one of the two recensions prohibit something which the other commands, then it would be a contradiction”.  Keeping in mind that Imam Qatadah’s (r.a.) definition of “shari’ah” as “al-fara’idh wa al-hudud wa al-‘amr wa an-nahy” involves two categories, al-fara’idh and al-hudud, which are used here in their original meanings of obligatory duties and prohibited actions respectively, a more accurate translation of his definition would read: “The obligatory duties, the prohibited actions, what was Commanded to do and to avoid”. 

Imam Qatadah’s (r.a.) explanation of shari’ah in terms of amr and nahy is a reminder of the concepts of diyn and islam.  The term, “diyn” was associated with obligatory duties as well as prohibited actions.  Similarly, it was mentioned that Imam ath-Thabari (r.a.) defined islam as belief in God and heeding to God’s Commands and Prohibitions.  Thus, as far as content goes, “diyn”, “islam” and “shari’ah” are the same: the way-to-be-followed Ordained by God.  These terms differ in relation to their subjects, functions and purposes.  The subject of shari’ah is God and He Ordains the way by Prescribing certain Commands and Prohibitions to provide guidance as to what is right and wrong.  The subject of diyn is the believer who relates himself to God through the way and thus attains God-consciousness.  The subject of islam too is the believer who submits to the way and utilises it to achieve righteousness. 

Imam Qatadah’s (r.a.) definition of shari’ah, as God’s Commands and Prohibitions show, is that shari’ah is related to conduct.  The believer conducts his life by heeding to God’s Commands and Prohibitions.  It is also comprehensive and permeates the  spiritual, mental and physical behaviour of the believer.  Thus, the shari’ah includes both faith and practice.  Belief in one God, and performing the obligatory duties like ritual prayer and fasting in Ramadhan is part of the shari’ah.  Similarly. all legal and social transactions as well as personal behaviour are subsumed under the shari’ah.  However the all-important question is knowing the shari’ah  - God’s Commands and Prohibitions. 

The basis of this knowledge lies in the Qur’an and the sunnah, the Prophet’s (s.a.w.) model behaviour which he bequeathed to the ummah at his death.  However, as the Qur’an and the sunnah did not cover all possible exigencies in their legislation, this basis could not suffice to meet the developing needs of the succeeding generations.  Thus, in addition to Qur’an and the sunnah, they utilised the principle of human intellect and understanding to know the shari’ah.  The Prophet (s.a.w.) had, in his life, time accepted and acknowledged this principle.  When Sayyidina Mu’adz ibn Jabal (r.a.), who was deputed to teach Islam to the Yemenites, said that he would use his personal judgement when the Qur’an and sunnah did not suffice, the Prophet (s.a.w.) remarked approvingly: “Praise is to God who has favoured the messenger of the Messenger of God with what the latter pleases”.