Frequently Asked Questions on:
Frequently Asked Questions on:
Frequently Asked Questions on:
Frequently Asked Questions on:
The purpose is not to provide exhaustive details on any of the themes discussed but to introduce Shariah in a nutshell, as it were, to readers with various levels of familiarity with the subject, Muslims and non-Muslims alike. The eight sections are as follows:
1. The basics of Shariah;
2. Shariah courts and proceedings;
3. Shariah and civil law;
4. Shariah and acts of worship (‘ibadat);
5. Shariah, Gender and Family;
6. Shariah, banking, waqf, and finance;
7. Shariah and Modern Bioethical and Environmental Questions;
8. Shariah, freedom of religion and the rights of minorities.
1. The Basics of Shariah
Q) What is Shariah? Where does the word come from and what does it mean now? What is the difference between Shariah and Islamic law?
A) Shariah literally means a way to the watering place or the path, one might say, to seeking felicity and salvation. It appears in the Qur’an once (al-Jathiyah, 45:18). In the English language, however, the phrase “Islamic law” has been used to refer to both the Shariah, which is revealed, and its interpretation as developed by jurists, called fiqh, which is a human construct. Fiqh (lit. understanding) is how the jurists understood the Shariah, especially the positivist aspects of Shariah of concern primarily with practical rules pertaining to the conduct of persons. Shariah is thus the wider source from which fiqh is derived. This distinction is not made in the phrase Islamic law, but it is important to draw this. As a path to religion, the Shariah is primarily concerned with a set of values and rules that are essential to Islam. Whereas Shariah is conveyed mainly through divine revelation (wahy) as contained in the Quran and the exemplary sayings and conduct of Prophet Muhammad, known as Sunnah, fiqh refers mainly to the corpus juris that is developed by the legal schools (madhahib), individual jurists and judges by recourse to independent legal reasoning (ijtihad) and issuance of legal verdicts (fatwa).
Q) When was Shariah/Islamic law created? How? By whom?
A) The Shariah is contained in the Qur’an, which is God’s revealed speech to Prophet Muhammad, received over a period of twenty-three years of his prophetic mission in the early seventh century CE. It was further developed and supplemented by the Prophet Muhammad through his sayings and conduct. Its interpretation and formulation into more specific rulings (ahkam) especially with reference to newly arising issues continued to be developed over time, mainly by the jurists (fuqaha’). Shariah courts also played a role but it was the work mainly of individual jurists who acted in their private capacities as pious individuals in the various parts of Islamic lands. That is why Islamic law is often referred to as ‘jurists’ law’ similar in this respect to Roman law. Almost all of the leading eponyms and imams of jurisprudence were private individuals and teachers. They wrote little themselves but their teachings were subsequently developed by their learned disciples, many of whom authored works that represented the authoritative articulation of their particular schools, or madhhabs.
Q) Is Shariah the same or different from other legal systems?
A) Shariah may be described as a “legal system” in a broad sense but it is perhaps more accurate to say that it lays down the fundamental principles of law, religion and ethics all combined. This can give rise to different legal structures, as it has indeed historically given rise to a variety of legal systems, all of which can be said to be based on Shariah, though not synonymous with it. In many cases the Shariah co-existed with an already existing legal system, such as the adat in the Malay world, the zawabit during the Mughal and the qanun during the Ottomans.
Q) Is the concept of Shariah strictly or solely Islamic? Is there a Jewish Shariah? A Christian Shariah?
A) The Qur’an says that each community has been given its own Shariah (al-Ma’idah, 5:48), including the people of Moses and Jesus (peace be upon them!). The validity of revealed laws preceding the Shariah of Islam (shara’i’ man qablana), especially of Judaism and Christianity, is recognized in the Qur’an and also the detailed articulations of Islamic jurisprudence (usul al-fiqh). Those revealed laws are not, however, practiced and Muslims are not bound by them unless explicitly affirmed in the Qur’an. This is so because the Shariah of Islam is self-contained. Some of the laws of Judaism, to which the Qur’an has made references, have survived under the Shariah of Islam, but which were then integrated and became a part of the latter. The Jews have a similar legal system which they refer to as Halakha and has many aspects in common with the Shariah. Christianity is basically not a law-based religion and has no elaborate legal system of its own. The Roman law which developed in Christian lands does not claim a divine origin in the religion.
Q) Do Sunni and Shi’i follow a different Shariah?
A) In so far as the Shariah is divinely revealed, Muslims of all schools and sects follow the same Shariah, including Sunnis and Shi’is. However their respective schools of jurisprudence, or madhhabs, differ in matters of detail. Such differences are not only seen in Sunni and Shi’i juristic schools, but also among the four leading schools of Sunni jurisprudence as well, that is, the Hanafi, Maliki, Shafi’i and Hanbali schools. That said, since the leading schools of Islamic law recognise one another and each as valid interpretations of the Shariah, under the jurisprudential principle of selection (takhayyur or takhyir), all schools may select formulas and principles from one another, and integrate them into their own school or madhhab. This has in fact happened on many occasions in the twentieth century when Sunni Hanafi countries, for instance, selectively adopted aspects of the Maliki, Shafi’i or Hanbali schools, and vice versa into their own laws. Twentieth century development also saw a partial integration of Shi’i jurisprudence, and modern law reform in some Sunni countries adopted aspects of Shi’i law, especially on matters of women’s property rights and inheritance in their statutory law reforms.
Q) What is the relationship between law and theology?
A) Before the systematisation of the different theological doctrines under the umbrella of ‘ilm al-kalam (also known as ‘ilm al- ‘aqa’id or theology), there was a certain unity and coherence between the different aspects of Islam. The Shariah of Islam consisted of three major but undivided components to begins with, namely of dogma, ethics, and law (‘aqidah, akhlaq and fiqh respectively). It was during the second century of the advent of Islam that the three branches were separated, and the fiqh as we know it today began to operate in many ways separately from theology and ethics. Over time, aspects of Islam pertaining to beliefs were also systematised into the science of theology (‘ilm al-kalam) while those relating to the human conduct and practical concerns of the applied law fell under jurisprudence (fiqh). The part of Shariah that related to behavior but was primarily addressed to individuals and not adopted into positive law were placed under akhlaq. That said, law, theology and ethics are intertwined in Islam so that theological suppositions, such as the nature of the human intellect (‘aql), legal responsibility (taklif) and moral concerns on virtues, good and evil (fada’il, husn wa qubh) are often the starting points of legal inquiry in works of jurisprudence. Broadly speaking, fiqh consists of a concretised articulation of the religious and moral values of Islam. These latter two are mother sources and fiqh is basically meant to translate their value structures into practical rules for purposes of enforcement.
Frequently Asked Questions on:
What are the ingredients of good governance?
Good governance means governance based on justice and for the welfare of the people. It also has legitimacy from the people and governs according to the rule of law.
What are the challenges of good governance?
Among others, good governance may be stalled by lack of accountability and undue concentration of power in a single authority. Often that is the result of failure of checks and balances and incomplete institutionalisation processes of state institutions. Sometimes it’s also due to the lack of legitimacy.
How then do we instill legitimacy?
Many ways, including governance in accordance with existing practices, structures and institutions rather than imposing a system on a society completely alien to it. The role of foreign intervention must also be minimized to give way to self-governance by the community.
Would it help to adopt a written constitution?
It can be adopted but its role in the polity must be properly delineated, lest it lends the impression in a Muslim society that affirming a constitution necessarily precludes the Shariah. The aims and purposes of the constitution should also be modest. Experience shows that when too high an expectation is placed on a constitution, it may be counter-productive, for instance, when peace compacts are expected to be achieved through the constitution, instead of preceding it.
But shouldn’t the Qur’an itself be the constitution in a Muslim society?
A constitution is never intended to replace revealed scripture, whether Islamic or any other. On the contrary, it merely gives concrete embodiment to the ideas, notions and conceptions of good governance that themselves are derived simultaneously from a variety of sources, scriptures included. It merely invites believers to articulate in civic terms what they already affirm religiously. In other words, it is an invitation to formulate different discursive strategies within one’s religious framework—a practice which in fact is very much within Islamic tradition for centuries.
What then is the role of Shariah in such a context?
In some cases, constitutions themselves can incorporate the Shariah. This can be done through express stipulations as Shariah constitutional clauses (e.g. that Shariah is a source of legislation), repugnancy clauses, provision in the preamble, clauses upholding Islam as state religion, or through legal pluralism. That’s from one side.
From another angle, Shariah shouldn’t be reduced to the rulings (ahkam), which is why historically, even when the Qur’an was first revealed, its strength was precisely its ability to capitalize on existing arrangements to give them renewed vitality and synergy, just as the Shariah endorsed some of the old Arab virtues and gave them universal significance. So the challenge today is for Muslims—not just their governments—to build on many of the already refined and polished institutions and practices to give a new dimension and focus, bringing to the fore their latent possibilities and removing obstacles due to previous frameworks.
How will the primacy of Shariah affect relations with non-Muslims?
It’s precisely the primacy of Shariah that calls for greater engagement with non-Muslims. In fact, what is sometimes passed of as “equality” in reality merely means that all religious communities are “equally” prevented from fully practicing their religion, which really is not equality but uniformity. What we should strive for is to respect the rights of all religious communities to develop their own moral narratives and allow their spiritual and ethical value to fully flourish. That was realized historically but it can be repeated today if we have the will. This calls for greater interfaith dialogue between members of different faiths.
What is the whole purpose of interfaith dialogue?
To reconnect with the true spiritual and civilizational heritage of all religions. At the basic level, it offers an avenue to minimize misunderstandings that may spiral into conflicts. At a higher level, it creates a space to bring forth the dormant possibilities that religions have to effectuate social change and transformation.
Will engaging in interfaith dialogue compromise the truth-claim of each religion?
To the contrary, it is by means of interfaith engagement that believers will appreciate their religion better, i.e. when one is invited to present one’s religion to an audience who does not share one’s religious premises.
What is needed to advance interfaith dialogue and good governance at the grass-root level?
A sense of ownership and personal responsibility is pivotal: each individual in society should understand that good governance begins at the personal level, in how we behave towards one another, and even in how we teach and educate our children to instill good thoughts (husn al-zann) towards the other.
Frequently Asked Questions on:
What is Tajdid Hadhari?
1. Tajdid Hadhari means “civilisational renewal”. It is an approach that emphasises renewal and development, consistent with the tenets of Islam, and is focused on renewal of the neglected aspects of Islam to accommodate contemporary needs and conditions of the ummah.
2. High on the agenda of Tajdid Hadhari is good governance and justice through balanced all-round development, strengthening the Muslims’ faith, and raising the status of Islam in the world.
3. Renewal and reform are essential ingredients of Tajdid Hadhari. Tajdid Hadhari also seeks to provide a correct alternative to the rigid, exclusive, hard-line, and extremist misinterpretations of Islam that are propagated today by deviant groups. Such misinterpretations pose a great threat to Muslims’ own understanding of their religion, to say nothing of the non-Muslims’ understanding of Islam. Tajdid Hadhari seeks nothing less than a return to the pure, original teaching of Islam, unfettered from the biases and unwarranted accretions that have found their way into people’s understanding of religion.
4. Tajdid Hadhari also emphasises the comprehensive and all-encompassing understanding of Islam. The civilisational perspective of Tajdid Hadhari encompasses material, spiritual, intellectual, political, scientific, and cultural aspects of human development.
5. Tajdid Hadhari is in line with the universal values of the Qur’an and Sunnah and serves not only the Muslims but also the non-Muslims. According to Mohammad Hashim Kamali, “Tajdid Hadhari is an approach toward regeneration and renewal of society and civilisation of the 21st century, in accordance with the noble values and injunctions of Islam.”
What does the word ‘Hadhari’ mean?
1. The word Hadhari means “civilisational.” Some see Islam primarily as a set of rituals. Islam is, however, much more than that. Islam is a comprehensive code of conduct and a way of life, an organic whole that we call civilisation. This very important aspect is often overlooked in the traditionalist discourse about Islam.
2. Tajdid Hadhari stresses the civilisational aspects of Islam to enhance the comprehensive development of society.
Where did the Tajdid Hadhari approach come from?
Tajdid Hadhari is an integrated part of Islam. Many eminent scholars have spoken of Tajdid Hadhari in recent decades. Distinguished Arab writers such as Said Ramadhan al-Buti, M. ‘Abid al-Jabiri, Wahbah Zuhayli, Rashid Ghannuchi and Mohammad Hashim Kamali began to employ the term “Tajdid Hadhari” in the 1990s in preference to such other expressions such as “political Islam” or “militant Islam.” Tajdid Hadhari offers a Muslim response of peace and harmony in contrast to Samuel Huntington’s thesis of the inevitability of a “clash of civilisations.”
Why was the Tajdid Hadhari approach introduced?
1. Tajdid Hadhari was introduced to address a range of pressing problems. It was also introduced to provide an alternative to the extremist interpretations of Islam being bandied about today by fanatical groups. The Islamic revivalist discourse of recent decades had often stressed the need to overcome sectarian, local and partisan interests and look toward the broader objectives and teachings for the wider ummah.
2. Clearly, the ummah has a duty to resolve its own internal problems. A good starting point would be the eradication of extremism, radicalism, and sectarian violence. Islam can tap into its rich intellectual heritage and directly challenge the extremist doctrines that have been linked to Islam in recent years.
Why is Tajdid Hadhari needed?
The modern world presents many challenges, such as globalisation, freer markets, and the borderless world. Muslims need to adopt effective approaches to face these challenges. Tajdid Hadhari is an approach that aspires towards regaining the sense of comprehensive and creative thinking, as well as ijtihad, and marks a departure from the tenacious hold of indiscriminate imitation and taqlid.
What are the objectives of Tajdid Hadhari?
1. Tajdid Hadhari seeks to go beyond ritualism and legalism in the practice of Islam and recover the full and rich experience of this great religion. It also seeks to rectify the imbalances of colonialism and internal decay caused by the decline of ijtihad. Renewed emphasis needs to be placed on ‘aqli or human sciences, as during the time of imitation (taqlid), most of the emphasis has been placed on naqli or transmitted knowledge. As a result of this lack of balance, the Muslims have fallen behind in the area of science and technology. Once the balance is restored, Muslims will emerge stronger, God willing, and better prepared to face the challenges of globalisation.
2. God the Most High designates the Muslims as “a justly balanced community” (Qur’an 2:143). It is incumbent on Muslims, therefore, to take a balanced approach to life in all their activities. A balanced approach requires that no aspect of human development be neglected at the expense of any other. For example, acquisition of the knowledge of religion must be complemented by the mastery of modern sciences, such as mathematics, physics, information science, technology, health sciences, and others. Without the knowledge of religion, Muslims will be unable to prosper spiritually. Without the mastery and application of modern sciences, they will be unable to progress. Albert Einstein went on record to say: “science without religion is lame. Religion without science is blind.”
3. Tajdid Hadhari advocates regeneration of the Muslim civilisation by placing renewed emphasis on Islamic principles that tended to be neglected, for one reason or another, in the past.
4. Tajdid Hadhari also calls for renewal. This renewal or tajdid must benefit everyone, not only the Muslims. Tajdid Hadhari calls for the renewal of Islamic civilisation through a rigorous pursuit of knowledge.
5. Tajdid Hadhari aims to strengthen faith, piety, integrity and character. It also attempts to restore balance in the understanding and practice of Islam as a world civilisation to counter the claim of the present world order to global supremacy.
6. By focusing on Islamic values and principles of great importance, Tajdid Hadhari provides an integrated approach to sustainable development and progress.
Does Tajdid Hadhari mean that Muslim women do not have to follow the Muslim tradition of wearing head covering and decent clothing?
1. Two of the principles of Tajdid Hadhari, emphasise faith and piety, cultural and moral integrity and advocate morally upright and dignified behaviour for women – indeed for all individuals.
2. Tajdid Hadhari is not a license to engage in immoral conduct, nor for violating accepted norms of privacy and dignified behaviour.
3. On the contrary, Tajdid Hadhari aims to strengthen the moral and spiritual values of Muslims.
4. Under Tajdid Hadhari, women as well as men have to observe Islamic standards of decency.
How can Tajdid Hadhari be of benefit?
1. Successful implementation of Tajdid Hadhari will contribute significantly to a more responsible, transparent, just and accountable government that serves the people through greater dedication to service and efficiency.
2. People’s sense of dignity and standing in the world can be expected to grow stronger when they become more independent, intellectually competent, and civilisationally successful. But this will require the mastery of religious knowledge, balanced economic development and an equitable distribution of wealth.
3. Through elevating moral and cultural integrity, Muslims will have made great strides towards eliminating the scourge of corruption and moral degradation. Malaysia has a very good image in the Muslim world but it can set better example for others to emulate.
4. Through better management of natural resources, Tajdid Hadhari helps to promote a more responsible and sustainable development of resources, as well as better protection of the environment.
5. Islam encourages social harmony with all strata of society and re-assures the non-Muslims that Islam advocates strengthening of the bonds of the human fraternity of Muslim and non-Muslim compatriots. Tajdid Hadhari also promotes the welfare of all citizens regardless of religion and race. This is because Islam does not differentiate between Muslims and non-Muslims in respect of their entitlement to justice and basic rights, economic well-being, and participation in the pursuit of common good.
6. Islam explicitly recognises the rights of non-Muslims to practice their religion and customs and forbids Muslims from oppressing anyone, including non-Muslims. The Qur’an in sura al-Mumtahinah (60:8) directs the Muslims: “God forbids you not to be fair and just with them (non-Muslims) …” Indeed Muslims are enjoined to be fair to the followers of other faiths who desire peace. Muslims are strongly advised to be good to their neighbours.
Under Tajdid Hadhari, will non-Muslims have to become Muslims?
1. Non-Muslims cannot be compelled to become Muslims. In the Qur’an God Most High unequivocally states that “there shall be no compulsion in religion” (Al-Baqarah 2: 256); and again, “One who wishes to believe let him believe, and one who wishes to disbelieve, let him disbelieve.” (al-Khaf, 18:29)
2. The Federal Constitution of Malaysia (Article 3 and Article 11) also guarantees freedom of religion to all people, irrespective of their religious persuasion.
Does Tajdid Hadhari mean that Malaysia will become an Islamic state?
1. An Islamic state does not have a formal name or definition other than its commitment to a set of principles such as upholding Islam and justice, consultative and participatory governance and the pursuit of the moral and material welfare of the people.
2. In this essentialist sense Malaysia to a large extent qualifies as an Islamic system of government. Islam is the official religion of Malaysia and the majority of its citizens are Muslims. The five pillars (arkan) of Islam are upheld in Malaysia. Islamic family law applies to Muslims in Malaysia just as Malaysia has also developed an Islamic financial system. Malaysia’s Shariah Index 2016 is also grounded in maqasid al-shari`ah. At the same time, non-Muslims are at liberty to worship according to the requirements of their respective faiths.
3. The government is committed to supporting Islam and Islamic institutions such as Muslim places of worship (mosques and suraus), Islamic education (kindergartens, schools, colleges, institutes and universities), Islamic banking, Takaful (Islamic insurance), Tabung Haji (pilgrims’ fund), Baitulmal and others.
How does the implementation Tajdid Hadhari take place?
The implementation of Tajdid Hadhari requires, first of all, creating and raising awareness about it among the people. It then becomes the responsibility of all citizens, Muslim and non-Muslim, to implement the principles of Islam in their own life and community.
Is Tajdid Hadhari supportive of innovative change?
In order to succeed in today’s challenging world, Muslims need to think of new and innovative ways of solving their problems. Tajdid Hadhari is a clarion call for a comprehensive regeneration and civilisational renewal of Islam to meet the challenges of today’s world. It also provides the impetus towards comprehensive religious, moral, economic, political, and scientific development of the ummah and Malaysia.
What can I do to promote Tajdid Hadhari?
1. First, obtain accurate information about it. Look at the bigger picture. Avoid being distracted by petty issues.
2. Increase your knowledge and be open-minded to meet the demands of socio-political and civilisational aspirations of Tajdid Hadhari.
3. Determine which of the principles of Tajdid Hadhari you are in a best position to implement. For Tajdid Hadhari addresses each and every one of us, not just the government leaders.
4. Have the courage to discard what you previously may have thought of as knowledge, if it turns out upon closer inspection that a particular view is no longer valid in today’s world.
[last updated Feb 2017]