Shari’ah: The Legal Angle

By Alh. Lawal Pedro (SAN)

Islam remains the most misunderstood religion of the world. Today anywhere outside an Islamic State or community when an informed Muslim raises his voice to proclaim Islam, he is called a “fundamentalist”

To an average critic of Shari’ah, the Muslim legal code represents extra judicial killing, maiming, amputations, terrorism and the likes. To them Shari’ah possesses no quality but barbarism, violation of human rights and represents a repressive laws by man to suppress its subject. This is understandable because most of the critics and antagonists are ignorant and not well informed about the religion and the advantages of Shari’ah as a legal system. Therefore, they are misguided by ignorance, hearsay, political consideration, ethnicity, religious sentiment and bias.

Meaning of Shari’ah

Simply put, Shari’ah is the divine laws of Allah (God) meant to guide the steps of man. It forbids all that is harmful and injurious to mar and allows all that is useful and beneficial to him. It is a detailed code of conduct to guide man in his relationship with his creator and fellow human beings. Consequently, Islam and Shari’ah demand of people to live a life of obedience and total submission to the will of Almighty God. The prophets, including Jesus Christ (Prophet Issa, PBUH) and Moses (Prophet Musa, PBUH) propagated Islam, which was then known as Religion of God.

Shari’ah is established by communicating from Allah with reference to Man’s act expressive act either of demand, indifference or declaratory. Demand here means the commandment or injunction of Allah on His creatures with punishment provided for disobedience. Indifference means Allah’s silence as to what a man may or may not do which is regarded as areas of permissibility. Declaratory means areas where Allah has declared rights and duties on His creatures with providing punishments.

Therefore, Shari’ah is more than criminal law as perceived by non-Muslims. Rather it is a complete way of life. It makes provision for all human transactions and actions in this world from family matters to the economy, science, law and morality. Shari’ah also includes right to life, speech, religion, beliefs, property, movement, etc. Therefore there is freedom of religion and no compulsion of belief under Shari’ah, or in Islam. Qur’an Chapter 2 verse 256 and Chapter 109 verses 1-6 both expressly discourage compulsion of religion.

Freedom of conscience is the basis of religion and no person should be sanctioned or discriminated against for his religious views or belief. In the true sense, Islam recognizes and guarantees individual freedom of religion.

Introduction of Sharia

In Nigeria, due to our diverse cultures, religious belief and social orientation of our people, it may be difficult to adopt Shari’ah as a legal system for the whole country. However, some provisions or principles of Shari’ah can be adopted or introduced in our legal system for the general good and benefit of the people by legislation of the States Houses of Assembly.

It may be argued that such law if made would be inconsistent with sections 10 and 38 of the 1999 Nigerian Constitution as its being canvassed against the Zamfara State government and others. Section 10 of the 1999 Constitution prohibits the adoption of any state religion. But it should not prevent government from prohibiting the doing of some bad conducts merely because religious beliefs underline the conducts in question. Laws prohibiting adultery, illicit sexual intercourse, gambling, stealing, murder, etc, have their origin in religion.

In America the courts have for a long time invoked a hard distinction between interference with religious belief and conducts. An example is the case of REYNOLDS V US.S 98, VS 45, 166 (1878). Thus, what would have infringed on the rights to freedom of religion must be specific acts of Government or legislation, which compels any state to accept Islam as his religion or take part in Islamic mode of worship. Therefore, when the Sunday closing laws was challenged; the Supreme Court of United States in the case of MCGOWAN V MARYLAND 366 VS 420 (1961) acknowledged that, historically the laws had a religious motivation and were designed to effectuate concepts of Christian theology. But it held that, that does not bar the state from achieving its secular goals by making the law for the health, safety and general well being of its citizens. In the same vein I submit that, the fact that Shari’ah has a particular significance for the Muslim in Nigeria because of its Islamic origin should not bar our Governments from adonting the principles of Sharia in achieving societal moral goals, standard and well being of the people. What is more, most of our laws today were imported from other countries with different culture.

It is to be remembered that man by his very nature is a moral being and law laid down by him for his guidance must have some minimal moral content, otherwise it will serve no useful purpose. The intermarriage between law and morality, which is protected by Sharia, has been recognized from time immemorial. The ten commandments given to Prophet Musa (i.e. Moses PBUH) and the Gospel revealed to Prophet Issa (i.e. Jesus Christ), are both laws and affirmations of basic principle of morality, fairness and justice.

Therefore, to forbid murder, stealing, rape, fraud, drunkenness, gambling, adultery, fornication and immorality; as well as to ensure peaceful co-existence, fairness, equality, trust etc, in a society or country, should be the primary concern of any responsible God fearing government. The early founders of the Church, chiefly Saint Augustine and later Saint Thomas identified natural law with divinity and measured positive law with natural law’s yardstick.

If we Nigerians with rich moral and cultural background becomes totally enslaved to western culture and continue to adhere to the philosophy that protection of morality should not be the concern of the law of the State, then it will come to a time when acts such as homosexuality and lesbianism, would be lawful and any move to prohibit them will be regarded as a breach of the fundamental right of the individual concerned.

I believe that is not the type of society we wish to bequeath to our children and the next generation. This is the time to act and adopt principles of Sharia in our legal system.

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