No Mere Legal Code: The Harshness of Shari‘a Law

Today, the expression, “shari‘a” – as in “shari‘a law” and “shari‘a finance” – is heard with increasing frequency. It is important to get clear on just what shari‘a is, particularly since some Muslims wish to bring it to prominence and even dominance around the world.
The great Western scholar of Islamic law, Joseph Schacht, once described the shari‘a as “the core and kernel of Islam itself.” The concept appears obliquely in the Qur’an at verse 45:18: “Then We put thee on the (right) Way of Religion [shari‘a]: so follow thou that (Way), and follow not the desires of those who know not.” This passage underpins the common Muslim claim that shari‘a law is divinely sourced, fixed and immutable, a gift to humanity from Allah, designed to show Muslims how to live and govern correctly.
Of course, there are different schools of interpretation. By the middle of the eighth century A.D., several had emerged in the Muslim Abbasid Empire. Of these, four survived among majority Sunni Muslims: the Hanafite, Malikite, Shafi’ite, and Hanbalite schools, the last being the most conservative/literalist. Further schools emerged among the minority Shiite Muslims, and several are in play today.
Even a cursory look at shari‘a legal codes shows that they are marked with inequality and excess. Consider first, inequality. In shari‘a courts, “all jurists, court officials and the judge must be Muslims; non-Muslims are not allowed to take part in any way. No woman may become a judge”.
In matters of family law, shari‘a law codes draw on the Qur’an (verses 2-3 of chapter 4) to permit polygamy. But only the Muslim male is allowed multiple marriage partners. Furthermore, these Muslim males can choose among Muslim, Jewish, or Christian women, while Muslim women must of necessity choose from their own community of faithful.
If marriages run into trouble, divorce is far easier for Muslim husbands than for wives. And when divorce occurs, Muslim wives can easily lose custody of their children. For instance, when children reach the age of seven, custody automatically passes to the father. Then, when Muslim parents die, the cycle of privilege continues, for sons inherit twice as much as daughters.
If a Jewish or Christian woman marries a Muslim, shari‘a law determines that the children automatically become Muslim, and according to the consensus, she is ineligible to receive an inheritance when her Muslim husband dies. The same goes for a person who leaves the faith (a murtadd or apostate), “except if he returns and repents before the distribution of the heritage” (M. J. Maghniyyah, The Five Schools of Islamic Law).
Inequality also extends to courtroom procedure. For instance, the testimony of a Muslim carries twice the weight of the witness of a non-Muslim. Furthermore, “In rape cases only a Muslim male witness’s evidence is admissible.”
Then there is the other striking dimension of shari‘a law: its excessiveness, first in prescribing excessive harshness, and second in its excessive attention to detail. The harshness shows itself in punishment, where public floggings, amputation of limbs, and execution by stoning are employed to exact revenge for crimes committed.
Flogging is prescribed for fornication by unmarried people, while married men and women caught in adultery (and witnessed by four men, or three men and two women, or two men and four women) are liable to be stoned to death. Thieves found guilty are likely to have a limb amputated (reflecting Q5:38). And most legal schools prescribe death for abandoning Islam.
Of course, some of this is reminiscent of the Mosaic law, which prescribed death for a number of offenses, including adultery, idolatry, bestiality, and sorcery. And while amputation was not an Old Testament punishment, stoning and lashing were. But Christians understand that those stern standards set the stage for the gospel, underscoring God’s holiness as an introduction to His grace. And the Israelite code was theocratic and temporary, not designed for contemporary culture, in which “Caesar” is duly granted the office of retribution. In contrast, shari‘a has always yearned for theocracy, with harsh, state retribution for the slightest impiety.
As for its pickiness, shari‘a law can make the Pharisees appear mild. For instance, a leading source of Muslim law in Southeast Asia, Reliance of the Traveller, declares that if an unrelated boy and girl baby share the same wet nurse, they become “unmarriageable kin.” In this same text, under “Ibn Hajar Haytami’s List of Enormities,” one finds condemnation for “plucking eyebrows,” “not straightening the row of people praying,” and “selling . . . wood or the like to someone who will make a musical instrument.” And this is a more moderate expression of Islamic law than that enforced by the Taliban, whose religious police make sure that “If any music cassette [is] found in a shop, the shopkeeper should be imprisoned and the shop locked” (Ahmed Rasid, Taliban: Militant Islam, Oil & Fundamentalism in Central Asia).
If the above portrayal of shari‘a law seems bleak and pessimistic, it should be noted that many Muslims have a jaundiced view of the Islamic legal codes. Surveys of British Muslims suggest that roughly half are opposed to the introduction of aspects of shari‘a law in Britain, and some Muslims have organized themselves into lobby groups to work against influences from shari‘a law. If, then, there are Muslim insiders urging caution on the question of Islamic law, non-Muslims should be skeptical when being presented with a sugar-coated version of shari‘a.
–Peter Riddell (Melbourne School of Theology) for BibleMesh