Islamic Jurispudence (Islamic Law Implementation Problems)

There is tremendous variance in the interpretation and implementation of Islamic
law in Muslim societies today. Some believe that colonialism, which often
replaced religious laws with secular ones, has caused this variance. More recently,
liberal movements within Islam have questioned the relevance and applicability of
sharia from a variety of perspectives. As a result, several of the countries with the
largest Muslim populations, including Indonesia, Bangladesh and Pakistan, have
largely secular constitutions and laws, with only a few Islamic provisions in family
law. Turkey has a constitution that is strongly secular.
Flexibility in Application of Shari‘ah
All the above is found in the theoretical definition of an Islamic state. However, in
today’s world, such an implementation is nowhere to be found, while those few
nations who lay claim to an Islamic system of government are in fact quite far from
its true implementation. These ‘Islamist’ nations tend to interpret Islamic law with
the narrowest view, rejecting traditional teachings and scholarship. We find such
governments constantly issuing decrees of stoning to death, amputating hands,
lashing, and other severe punishments for various crimes.
The current overriding problem is ‘Islamic’ states follow the letter of the law –
‘black letter law’ - without regard to precedents. On the other hand, in Islam,
traditional governments follow precedents established over many centuries, much
as is the case here in the U.S.
In Islam rules are tempered by application. As a simple example, who is allowed to
make the judgment to cut the hand of a thief? Let me explain how this is
implemented. First of all, you cannot cut the hands of someone who steals in order
to eat, as we see today in Argentina. In Islam, the government’s first duty is to help
the impoverished; you simply cannot cut the hands of people who steal because
they are hungry. If a person is in need of medicine and steals it, you cannot cut off
his hand. The only time the judgment of cutting the hand applies is when someone
steals out of greed, without need, and even then numerous criteria must be met to
hand down such a punitive sentence.
Even rules based on the principle of consensus of scholars, ijma, which in itself is
difficult to accomplish, can be changed. Dr. Wahba al-Zuhayli, wrote:
Consensus of scholars on a certain issue made earlier can be abrogated by the
consensus made by a later generation if there were changes in the conditions which
are for the common good of the people as time progresses. The followers of the
Ħanbalī school and some of the followers of the Ħanafī school say that one can
reformulate or abrogate a law developed by consensus at one time by a new law
that fits the later circumstances.[72]
Islamically, this concept of reformation or rejuvenation of the law is necessitated
by change in society over time.
The Islamists differ from the traditionalists in that the latter call for a reinstitution
of fiqh, but not necessarily an elimination of existing systems of law.
Islam requires in the case of the thief that the system attempt to rehabilitate him
and seek ways to encourage him to repent:
‫َاب ِمن بَ ْع ِد ظُ ْل ِم ِه َوأَصْ لَ َح فَإِ َّن هّللا َ يَتُوبُ َعلَ ْي ِه إِ َّن هّللا َ َغفُو ٌر َّر ِحي ٌم‬
َ ‫فَ َمن ت‬
But if the thief repents after his crime, and amends his conduct, Allah turneth to
him in forgiveness; for Allah is Oft-forgiving, Most Merciful.[73]
This means he should be given every chance to reform, such as assisting him to
earn a lawful living. It is the state’s responsibility to ensure people’s life needs are
met, such that there is no need to steal. Job opportunities should be provided as a
form of social security. Such examples can be found in Brunei, and in a number of
other wealthy Muslim countries.
Unfortunately, today we see the reverse being implemented by “Islamic” nations.
Someone steals medicine, food, etc. and is punished, while those who amass
millions of dollars through dummy corporations, racketeering, money laundering,
illicit drug and weapons sales, are never brought to justice. This is the sad
condition of some Islamic religious leaders of our time, who follow the letter of the
law in contravention of its spirit.
‫ لو أن فاطمة بنت محمد سرقت لقطع محمد يدها‬، ‫ هللا‬s‫”قال عليه السالم “وايم‬
The Prophet (s) is reported saying, “By Allah! Even if my daughter Fatimah steals,
I would cut off her hand.”[75]
How Should Sharia Be Applied?
When Muslims in different regions of the world say they want sharia to be the law
of the land, do they also share a vision for how sharia should be applied in
practice? Overall, among those in favor of making sharia the law of the land, the
survey finds broad support for allowing religious judges to adjudicate domestic
disputes. Lower but substantial proportions of Muslims support severe
punishments such as cutting off the hands of thieves or stoning people who commit
adultery. The survey finds even lower support for executing apostates.

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There is tremendous variance in the interpretation and implementation of Islamic

How Should Sharia Be Applied?

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