infidels were not their laws; it was the God-given nature of their laws. 3 And because these laws came ultimately from Muhammad’s divine revelations, they were fixed and could not be changed. Thus the law code dating from the seventh century continues to be followed today in nations and regions that adhere to sharia. Where Western laws generally set boundaries for what cannot be done, leaving everything else permissible, with sharia the system is reversed. The list of things that can be done is very small, while the list of what cannot be done overwhelms everything else—except for the list of punishments, which is even longer.
As a legal text, the Qur’an reflects its origins in a tribal or clan-based society, particularly on issues concerning inheritance, male guardianship, the validity of a woman’s testimony in court, and polygamy. This is even more obvious in the hadith, the compilation of sayings attributed to the Prophet or documenting his actions. This combination of the Qur’an and the example of Muhammad forms the basis of sharia. The derivation of these legal rules, known as fiqh , is the responsibility of Islamic jurists and takes place on the basis of ijma (consensus). When conflicts of interpretation arise, scholars consult the Qur’an and hadith. If both are silent on the subject, jurists rely on a method of analogy ( qiyas ) to reach consensus.
As Ernest Gellner points out in his classic work, Muslim Society , “In traditional Islam, no distinction is made between lawyer and canon lawyer, and the roles of theologian and lawyer are conflated. Expertise on proper social arrangements, and on matters pertaining to God, are one and the same thing.” 4 In other words, it is as if our priests, ministers, and rabbis were also our judges and legislators, employing their religious theology to establish legal boundaries of acceptable conduct in our daily lives.
Over the years, I have engaged in many discussions and debates on the Qur’an and hadith and their role in sharia. A common reply from devout Muslims is that the Bible (particularly the Old Testament book of Leviticus, but other sections as well) contains rules and punishments that are strict and stringent and antiquated by modern standards; thus it is unfair to single out Islam.
It is true that many parts of the Old and New Testaments reflect patriarchal norms. It is also true that the Hebrew scriptures contain many stories of harsh divine and human retribution. Even nonbelievers have heard of the concept of “an eye for an eye.” In Deuteronomy, Moses imparts a great many laws, governing everything from the removal of boundary stones to the muzzling of oxen, to prohibitions against marrying one’s stepmother, to the punishment of stoning for the crime of idolatry. The difference is that no one invokes these passages in modern-day jurisprudence, and their prescribed punishments have long since been set aside.
If there is one set of rules that is “timeless” in the Jewish Torah and the Christian Bible, it is the Ten Commandments, a relatively short list of prohibitions on killing, stealing, adultery, and so on. It was assumed that most laws were not religious in origin. Indeed, Judaism contains an ancient principle known as “ dina demalkhuta dina ,” which means, “The law of the land is the law.” 5 This is the principle that has made it possible for Jews as a community to exist under civil laws that differed from their own religious laws. 6 Christ, too, made it clear to his followers that they should “render up to Caesar what is Caesar’s,” and not only where Roman imperial taxation was concerned. Islam, on the other hand, views any law not in harmony with its own as illegitimate (5:44, 5:50). And its own law—sharia—derives from the entire Qur’an and all hadith.
Nothing drove this home to me more than the session of my Harvard seminar in which we discussed the drafting of a new Egyptian constitution. The Egyptian student who
As a legal text, the Qur’an reflects its origins in a tribal or clan-based society, particularly on issues concerning inheritance, male guardianship, the validity of a woman’s testimony in court, and polygamy. This is even more obvious in the hadith, the compilation of sayings attributed to the Prophet or documenting his actions. This combination of the Qur’an and the example of Muhammad forms the basis of sharia. The derivation of these legal rules, known as fiqh , is the responsibility of Islamic jurists and takes place on the basis of ijma (consensus). When conflicts of interpretation arise, scholars consult the Qur’an and hadith. If both are silent on the subject, jurists rely on a method of analogy ( qiyas ) to reach consensus.
As Ernest Gellner points out in his classic work, Muslim Society , “In traditional Islam, no distinction is made between lawyer and canon lawyer, and the roles of theologian and lawyer are conflated. Expertise on proper social arrangements, and on matters pertaining to God, are one and the same thing.” 4 In other words, it is as if our priests, ministers, and rabbis were also our judges and legislators, employing their religious theology to establish legal boundaries of acceptable conduct in our daily lives.
Over the years, I have engaged in many discussions and debates on the Qur’an and hadith and their role in sharia. A common reply from devout Muslims is that the Bible (particularly the Old Testament book of Leviticus, but other sections as well) contains rules and punishments that are strict and stringent and antiquated by modern standards; thus it is unfair to single out Islam.
It is true that many parts of the Old and New Testaments reflect patriarchal norms. It is also true that the Hebrew scriptures contain many stories of harsh divine and human retribution. Even nonbelievers have heard of the concept of “an eye for an eye.” In Deuteronomy, Moses imparts a great many laws, governing everything from the removal of boundary stones to the muzzling of oxen, to prohibitions against marrying one’s stepmother, to the punishment of stoning for the crime of idolatry. The difference is that no one invokes these passages in modern-day jurisprudence, and their prescribed punishments have long since been set aside.
If there is one set of rules that is “timeless” in the Jewish Torah and the Christian Bible, it is the Ten Commandments, a relatively short list of prohibitions on killing, stealing, adultery, and so on. It was assumed that most laws were not religious in origin. Indeed, Judaism contains an ancient principle known as “ dina demalkhuta dina ,” which means, “The law of the land is the law.” 5 This is the principle that has made it possible for Jews as a community to exist under civil laws that differed from their own religious laws. 6 Christ, too, made it clear to his followers that they should “render up to Caesar what is Caesar’s,” and not only where Roman imperial taxation was concerned. Islam, on the other hand, views any law not in harmony with its own as illegitimate (5:44, 5:50). And its own law—sharia—derives from the entire Qur’an and all hadith.
Nothing drove this home to me more than the session of my Harvard seminar in which we discussed the drafting of a new Egyptian constitution. The Egyptian student who
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