Does Sharia Always Mean Oppressive Laws?

In Arabic, Sharia means "the way," says Asifa Quraishi-Landes, a law professor at the University of Wisconsin-Madison Law School, "or basically, the way to live a good life."

Sharia, to Muslims, is a guide for how God (Allah) wants them to live. It tells them how to treat others compassionately, how to take care of their bodies, how to conduct business fairly and how to care for the poor and marginalized. In that sense, Sharia is not unlike the Ten Commandments, the kosher dietary laws or the biblical admonition to "love thy neighbor as thyself."

"For millions of devout Muslims around the world and in the United States, Sharia governs everything from the way we eat to how we protect the environment," says Abed Awad, an American attorney specializing in Sharia-compliant estate planning and family law and an adjunct law professor at Rutgers Law School, Newark. "Sharia guides us to be righteous humans, good neighbors, loyal spouses, loving parents, to care for the elderly, to be honest and fair in commercial transactions, and to make charity a way of life."

There are currently 15 countries that use Sharia in part or fully. These include Afghanistan, Egypt, Nigeria, the Maldives and Saudi Arabia. The most populous country using Sharia is Indonesia, though only one province in the country uses Sharia, in addition to secular law. Each nation has its own practices as to what is allowed and what is forbidden under Sharia. Throughout the centuries-long history of Islam, there wasn't a single way followed by all Muslims and therefore no single "Sharia law." Since Sharia (sometimes spelled as "Shariah") is defined as "Islamic law," it is redundant to say "Sharia law."

Beginning with revelations received by the Prophet Muhammad in the seventh century C.E. and recorded in the Quran, Muslim scholars and jurists have debated the correct interpretation of the Quran as well as the teachings of Muhammad (called the Hadith). The result were different schools of Muslim legal thought, each with its own set of laws known as fiqh or "understanding."

"The way that Islamic law evolved was that there were multiple schools that individual Muslims would choose from," says Quraishi-Landes. "That's why you'll still find lots of different ways that Muslims are in the world. Historically, Muslims had a pretty good track record of unity without uniformity."

While the legal concept of "separation of church and state" is fairly new to the West, a similar type of separation was practiced in the Muslim world for centuries.

The leaders of the various Islamic legal schools successfully fought to keep kings and rulers out of religious matters, says Quraishi-Landes. What developed were two separate sets of laws. Moral and personal matters fell under fiqh, and those laws were drawn up by each legal school. Matters of the state — the equivalent of today's zoning laws and administrative regulations — fell under a second category of laws called siyasa.

"Instead of a separation of church and state, the Muslim world had a separation of fiqh and siyasa," she says. "Historically, Muslims didn't have the same theocracy problems that Europe had, because Muslims didn't combine everything into a centralized government the way Europeans did."

If the moral code of Islam was never meant to be enforced by the state, then how do you explain the Taliban or Saudi Arabia? The answer, interestingly enough, is colonialism, Quraishi-Landes says.

In the 18th and 19th centuries, countries like England and France, as well as corporate entities like the English East India Company, colonized Muslim-majority territories in North Africa, the Middle East and the Indian subcontinent. The colonizers installed European-style governments and legal systems based on the idea of a unified, centralized authority.

Under this new colonial system, the traditional Islamic legal schools were sidelined and robbed of authority, and the siyasa or civil codes were replaced by British common law or the French Napoleonic Code, according to Quraishi-Landes. Now the entire legal system and government operations were all under one colonial roof.

And that's how it remained for more than 100 years until those Muslim majority countries began to regain independence in the 20th century. As they emerged from their colonial yokes, warring political movements argued over how the new nations should operate.

"Some of the loudest voices in these Muslim-majority lands said, 'The colonizers took Islam away from us. They took our Sharia away from us,' which in many ways they did," says Quraishi-Landes. "But instead of rethinking the system, the new independent governments just poured the fiqh rules — the Islamic moral codes — into the centralized government model that the colonizers had created."

And that, in a nutshell, is how we ended up with Muslim countries in which the government legislates and prosecutes moral behavior under the guise of Sharia.

"The state is now deciding what is the Islamic law, including rules about how to dress, how to get married, etc.," says Quraishi-Landes. "That's only possible after this post-colonial transformation. When you see something being called Islamic government today, it's really European government dressed up in Muslim clothing."

According to the Embassy of the Kingdom of Saudi Arabia, the Saudi legal and justice system is based on Sharia. "Sharia refers to the body of Islamic law. It serves as a guideline for all legal matters in Saudi Arabia," explains the embassy website. "In the Sharia, and therefore in Saudi Arabia, there is no difference between the sacred and the secular aspects of society."

The problem with this explanation, according to Islamic legal scholars like Quraishi-Landes and Awad, is that outside of a handful of countries that call themselves "Islamic states" — Iran, Pakistan, Saudi Arabia, Malaysia and others — there is no single interpretation of the fiqh laws accepted by all Muslims. And there's no ecclesiastical or government body tasked with punishing people for breaking those laws.

"Saudi Arabia and the Taliban are telling the people, 'We're doing Sharia for you,' but they're lying," says Quraishi-Landes. "What they're not saying is that they're picking and choosing from among many equally valid fiqh rules. And they're using the power of the state to force it on the people."

The truth, says Awad, is that what these groups call "Sharia" is nothing more than a political tool for dictatorial regimes to stay in power. And that corruption of true Sharia, "this sophisticated moral tradition," says Awad, has led to its demonization in the West, including efforts by U.S. politicians to ban the use of Sharia in American courts.

"When you get a group like the Taliban that claims to enforce Sharia and then chooses the most restrictive of all of those rules, that's when you get the headlines in the news: 'All Sharia is all bad all the time,'" says Quraishi-Landes.

Awad explains that 95 percent of the world's Muslims live outside of these few hardline regimes claiming to legislate and enforce Sharia. For that vast majority of Muslims, there is no central religious authority that polices their behavior and levies punishments for violating moral codes. There aren't even ordained clergy in Islam. Allah is the only judge, and He's "most forgiving," he says.

"Islam takes the position that you can be on the wrong path for decades, but there's always the potential for you to repent and ask for God's forgiveness," says Awad.

As for how most Muslims decide how to dress and what to eat, they look to the Quran, Hadith and other sources for guidance, but it's ultimately a matter of personal choice. The Quran does say that believing Muslim women "should draw close to them portions of their loose outer coverings," but it doesn't say exactly what head or body coverings should be worn. Nor does it recommend any punishments for women who do not wear a veil. That's why you see so much diversity in how Muslim women choose to present themselves.

How the Taliban will govern Afghanistan according to Sharia, as they have pledged to do, is unclear. The senior commander of the Taliban said that a group of Islamic scholars will determine the legal system and the government will be guided by Islamic law. "There will be no democratic system at all because it does not have any base in our country. We will not discuss what type of political system should we apply in Afghanistan because it is clear. It is Sharia law and that is it," he told Reuters, as reported by Al-Jazeera.

As to what that means in practice — whether a return to very strict laws on dress codes and the banning of women from education and most work — remains to be seen.