Is Sharia Islam?

The year is 2024 and we are discussing interesting issues. The claim is that Sharia is Islam. My counter-argument is that no it is not, Sharia is law and many of its provisions are the product of human thought. The real source of Islam is revelation, the word of God, not human thought, it cannot be. Therefore, sharia is not Islam either. I open the subject for discussion: 

Sharia, (plural "sharia"), is an Arabic word from the root sherea' (الشر ع), which means "a way, a sect, a method, a custom, a path that leads one to a river, a source of water to drink" and is used in the sense of making judgements.

The first question is: What are the sources of Sharia? The sources of Shari'ah are Nas (i.e. the Book+Sunnah and hadiths), fatwas, qiyas, ijtihad, ijma (unanimity), qiyas (rey), and even maslahat. Maslahat means what is good, good and suitable for human beings. 

So why is there a need for Sharia? As mentioned above, sharia is to make judgements, i.e. norms, i.e. rules. In this respect, its legal rather than religious nature is important. It was needed to bring a new social order and order to the newly established Islamic state. We can roughly say that it is the law of the Islamic State. This subject is taught in law faculties, but do not confuse it with Mecelle. Mecelle is similar to today's Civil Law. It came into force in 1876 and I think it is a masterpiece of law. Let our lawmakers take a look, maybe they will learn how to write a law. Anyway, let's not digress. 

When the Islamic society was first formed, the Prophet was alive. The problems encountered in daily life were solved either by asking him (hadith) or through his actions (sunnah). He also offered solutions based on the Book. In addition to the parts of daily life that are related to morality or faith, I am referring to marriage, adoption, inheritance, divorce, social etiquette, weighing the scales, interest and many other issues. We collectively call the judgements brought by the Prophet while he was alive, based on the Book, as Nas. 

There is no problem while the Prophet was alive. What he said is the rule, and there are already clear provisions in the Book. This is how the Sharia order is established. In this way, we can say that Sharia is Islam. However, after the Prophet's death, problems begin. From time to time, there are disagreements about the solutions to the problems encountered in daily life. What is done in this case? People who lived at the time of the Prophet, namely the Companions, are consulted. We call this the fatwa of the Companions. The Companions say that if the Prophet had lived, he would have done this or thought that and give a fatwa. There are other types of fatwa. 

As time passes, the Companions pass away one by one. When there are no Companions left, this time Islamic scholars, i.e. the ulema, are consulted, but a rule is set. The issues that all scholars do not agree on do not find an application area as a Sharia ruling. Here, we call the Sharia decisions taken unanimously by the mujtahids, that is, all the scholars related to law, ijtihad. In order to produce ijtihad, some methods such as ijma (unity), syllogism and opinion are developed. In this way, the methodology of Islamic law, which we call Fiqh, is formed. There is no problem here either. 

However, the Islamic State is growing and expanding. Accordingly, it becomes physically difficult for the mujtahids to gather together and form ijtihad. Especially in the expanding geography with the conquest of Damascus and Baghdad, criticisms and different opinions are put forward regarding some jurisprudential interpretations made from Medina, which is more conservative and conservative. We first call them schools. That is, schools. Like the school of Damascus, Kufa, Basra, Medina...

Where do we come to? You know, we always talk about sects, Hanafi, Hanbali, Maliki, Shafi, these are schools of fiqh. In other words, schools are sects. We call them true sects. For example, I am Hanafi, my imam is Imam Azam Abu Hanifa. It originated from Iraq, that is, Kufah. It is the most common sect in Turkey. But Sunnism, which is another concept, is something different, we call the one of these four fiqh sects Sunni. It sounds a bit complicated, but it is not. 

We have mentioned why sects are needed. We said that geography expanded, it became difficult to form ijtihad, and different interpretations emerged. The point I need to emphasise here is that as the geographical centre moves away from Medina, more liberal and libertarian interpretations are made. For example, since my sect, Hanafism, is in the Maturidi belief system, it is not accepted by others, namely the Ashari sects. In fact, at one time, Imam Azam Abu Hanifa's interpretations were described as irreligious by others. 

Let's go back to the original topic. What was being done? Law was being produced. What happened? It became difficult to produce jurisprudence and fiqh was divided into four parts. The Islamic state also grows and becomes an empire. The subjects also expand. Example? One of the sharia rules that was seriously debated at that time was the issue of whether manuscripts could be endowed to foundations. 

There is an important point here. The formation of these sects coincides with the 700s. Roughly speaking, after the 700s AD, the standardisation in the activity of producing fiqh, that is, rules, ended. To summarise, the latest Sharia provisions were produced about 1300 years ago. There are some who claim that this was not the case, but the sharia provisions produced in this context are the rules specific to the sects and bind the believers of that sect. 

Yes, I haven't gone into Kharijism and Shiism yet. Salafism is a separate issue. Alevism is also a special subject. Although the Book and the Prophet are one, there are dozens of different Islamic belief systems and practices based on these beliefs. Some are represented by the sovereign political authority (the state), while others are maintained through sects. There are also those that have been lost, destroyed and forgotten. 

To summarise; Sharia does not mean Islam. Sharia is the social order and legal system envisaged and proposed by Islam. It is not among the contemporary legal systems of today. It is dealt with as a subject of the History of Law course in law faculties. 

Let me briefly talk about legal systems. If we give examples of living contemporary legal systems, we can mention the Roman-Germanic (Roman Code) system, which is widespread in continental Europe, to which we are currently subject, or the Anglo-Saxon legal system, which we call the judge's law applied in England and the USA and some British colonies. These are vibrant, living and dynamic legal systems. Sharia, on the other hand, is an archaic legal system whose last common provisions were produced about 1300 years ago. Not only Islam has sharia, but other religions such as Judaism and Christianity also have sharia. For centuries the monarchies of Europe have received authorisation from the Pope in the Vatican. In Greece, there are still special provisions regarding the ownership of land by the Church. The Israeli Constitution states that the State of Israel shall be governed according to the Jewish Sharia. Religious rituals and symbols abound in the Knesset, the Israeli parliament. 

I summarise for the last time the points that need to be known;

1. Sharia is not a dynamic legal system that responds to the legal needs of contemporary societies. 

2. Most of the provisions of the Shari'ah are the products of human thought, produced by fatwas and especially by jurisprudence. 

3. With the emergence of sects, the consensus on the provisions of the Shari'ah has disappeared. 

Finally, I end my article with a question: Was the Ottoman Empire ruled by Sharia? You can find the answer to this question.