Islamic Sharia and Its Principles: A Deliberate Conflation By Dr. Hossam Badrawi

What Does the Egyptian Constitution Say?

Article 2:

“Islam is the religion of the state, Arabic is its official language, and the principles of Islamic Sharia are the main source of legislation.”1

Article 3:

“The principles of the laws of Egyptians of Christians and Jews are the main source of legislation regulating their personal status, religious affairs, and the selection of their spiritual leaders.”

Islamic Sharia is considered a selected collection of Muslim jurisprudence derived from the texts of the Holy Quran and prophetic traditions that pertain to regulating the lives of individuals and societies. Some consider them obligatory rulings, even though they are jurisprudential selections from various schools of thought, which differ due to variations in time and multiple methods of derivation. Recently, even the largest religious state, Saudi Arabia, has concluded that there are no more than one hundred authentic hadiths that can be referenced solely for establishing jurisprudential rulings.

The issue revolves around two different concepts: the application of Islamic Sharia as promoted to the general public, and the application of the principles of Islamic Sharia as stipulated in the Constitution.

While Islamic Sharia refers to a selection of jurisprudential rulings aimed at regulating people’s dealings, the principles of Islamic Sharia (as stipulated in the Constitution) are a set of moral values and principles that contribute to guiding individual behavior.

This article aims to clarify the fundamental differences between the two.

First: The Application of Islamic Sharia

The application of Islamic Sharia addresses issues that are constantly changing and require updating with variations in time, place, and circumstances to consider the evolving interests of society. This includes personal status matters related to marriage and divorce, commercial transactions that regulate economic relations between individuals, justice and the judiciary in setting penalties aimed at maintaining security and public order, conditions for judicial authority, testimony, evidence for affirmation and denial, as well as international relations, treaties, war, and the treatment of prisoners, among others.

This also involves opening the doors for jurisprudence, ijtihad (independent reasoning), and renewing interpretations to keep pace with social, economic, and cultural developments.

Second: The Principles of Islamic Sharia

These represent fundamental and innate moral values and principles that all people inherently acknowledge. They guide human behavior towards what is most appropriate in terms of justice, compassion, and cooperation for good. These principles are considered a comprehensive guiding compass for daily life. Among these principles are:

• Justice: As a central value for governance among people, and a duty that must be achieved in all types of dealings and interactions between individuals.
• Compassion: In human interaction, which is relied upon in a person’s relationship with themselves and with others to establish lasting social peace.
• Equality: Which promotes the principle of equal opportunities, without discrimination based on gender, color, race, or even religion.
• The principle of good morals.

Third:

• The principles of Islamic Sharia share common ground with the principles of other monotheistic religions and sound human values because they are innate principles created by God Almighty in the normal human being, as stated in the Quran: “So set your face firmly to the religion, inclining to truth. [Adhere to] the fitrah of Allah upon which He has created [all] mankind. No change should there be in the creation of Allah. That is the correct religion, but most² of the people do not know.” (Ar-Rum: 30).³

Fourth: Clear Differences Between Applying Islamic Sharia and Its Principles

There are clear differences between the application of Islamic Sharia and the application of its principles on several levels:

• While the application of Islamic Sharia focuses on selecting a fatwa (religious edict) or jurisprudential opinion for each subsidiary issue in people’s dealings, the principles of Islamic Sharia focus on the quality of justice or compassion in the formulated legal text, even if it is not from classical Muslim jurisprudence books. Examples include determining working hours, paid weekly and annual holidays, pensions, insurance, democracy, and other concepts adopted from non-Muslim Western jurisprudence but which are consistent with general Islamic principles.
• The application of Islamic Sharia requires adherence to the jurisprudence of traditional Islamic schools of thought or contemporary jurisprudential councils when drafting legislation and legal procedures to enforce its rulings. In contrast, the general principles of Islamic Sharia promote flexibility in ijtihad through education and upbringing.
• The general principles of Islamic Sharia are considered more comprehensive, as they can apply to all human beings regardless of religion or culture. In contrast, the application of Islamic Sharia, as selections from traditional jurisprudence, varies according to the specific cultures and customs of each society.

In conclusion, a correct understanding of the difference between applying Islamic Sharia and applying its principles remains vital for achieving justice, equality, compassion, and flexibility in societies.

Accepting Islamic Sharia and recognizing that it consists of jurisprudential selections, and distinguishing between it and the principles of Islamic Sharia, helps build a space that promotes peaceful coexistence and contains shared human values.

Furthermore, the commonality with the principles of other monotheistic religions reflects the shared human values that unite people regardless of their religious differences.

The principles of Islamic Sharia are considered a mirror reflecting moral perfection and social organization, making them an integral part of human life and its direction towards truth and goodness.

I remind the reader of the Constitution’s preamble, which is as important as its articles, clearly stating that the Constitutional Court is responsible for accepting the interpretations of jurists, not the Council of Al-Azhar Scholars or Dar Al-Iftaa. Their opinions are not binding; rather, they are correct interpretations that may be wrong, and wrong interpretations that may be correct, as dictated by reason.

If fatwas are transformed into law, then the Constitutional Court is responsible for accepting or rejecting their conformity with the principles of Islamic Sharia.

The Constitution’s preamble states:

(We write a constitution that affirms that the principles of Islamic Sharia are the main source of legislation, and that the reference for their interpretation is what is contained in the totality of the rulings of the Supreme Constitutional Court in this regard).

If we were to apply Islamic Sharia as interpreted by scholars in the past, there would be no state rules for documenting contracts, no limits on salaries, no pensions, no insurance, no holidays, no banks, no buying and selling on the stock exchange, and so on. All of these we have adopted from the models of other nations’ dealings and used them for the benefit of citizens and the regulation of their lives.

In conclusion, a correct understanding of the difference between applying Islamic Sharia and its principles remains vital for achieving justice, equality, and compassion in societies.

The principles of Sharia are considered a mirror reflecting moral perfection and social organization, making them an integral part of human life and its direction towards truth and goodness.