Views on the implementation of Shari’a law

[Positive]

One possible hot topic that is actual now is about the implementation of Islamic law, Shari’a, in our country. While there is general agreement among the Somalis about the need to adopt Shari’a as the sole source for our legal system still our knowledge of how it should be implemented is shallow you may say: one could claim that this is true for the most , if not all, of the Somali religious scholars. The path forward seems unclear and our differences direr if we do not mend our disagreements, in this respect about the implementation of Shari'a, in a peaceful and loving way.

 

Pertinent sub-topics can be:

 

1)Introduction of shari’a in a historical

perspective

 

2)Viability of the implementation of shari’a

in the absence of Islamic state.

 

3)The difference between fiqh and

shari’a and if one of them is

prominent.

 

4)Conditions that has to be fulfilled before a

Shari’a is introduced as the legal system.

 

5)The position of ijtihâd' specially

when it comes to fiqh/Shari'a.

 

I’m sure that we could all benefit from discussing about this topic. This review could be an appetizer for those of you who choose.

 

Your comments are well come.

 

Thanks

 

The Awakener2

[Haneefah]

Very interesting and timely topics indeed. Insha Allah, I will try to find time to read the review.

 

Thanks, and I hope shaikh Nur can enlighten all of us on some of the key components associated with implementation.

 

You may also wish to search the archives as I am sure SHaikh Nur created threads concerning the issue of Islamic governance in Somalia.

[Nur]

Positive bro.

 

Good and timely discussion topic.

 

I think before we embark on this great topic that we first discuss the drivers for this topic. We should first question Why Sharia? and Why Now?

 

If we have no idea why the Sharia is necessary to be applied, it becomes a futile attempt. If on the other hand, we understand its importance and urgency, then, we will have the will, and if there is a will, there is always a way for the implementation of the Sharia.

 

We need to define Sharia, its connection with the Aqeedah, and its benefits to society.

 

 

Nur

[Fabregas]

quote:implementation does not mean that sharî’a law has been substituted by western laws. On the contrary, in Egypt, sharî’a law is actually already implemented, infused with western concepts and laws which are not contradictory to sharî’a law. « Egyptian law is ninety percent sharî’a law »

 

He argues also that western influences in present Egyptian law are not foreign to Egyptian society or sharî’a law. Most of Egyptian law is based on French law, which is based on Roman law. Sharî’a law and Roman law, 'Ashmâwî argues, share the same legal and cultural heritage, and there are quite a few influences of Roman law in sharî’a law ('Ashmâwî, 1996 : 31-35).

 

 

:confused:

 

I suppose that is the type the type of Shariah Somalia will get, coffee which is not black nor white( mixture of of western system with Islamic system). As RagE Omar's brother is reported to have said the other day, " Somalia will get the same shariah as in Pakistan and other countries". THat probably answers Sheikh Nurs question(why now?): becauase galadi ba ogalatay, after theY reliased somalis are willing to die for their coffee. They said you can have your coffee but only if you mix it with half our milk, which we will pay for, and not drink coffee with the guys that want all black coffee.

[Positive]

Brother Nur,

 

I know that some topics need extensive answers and this can be one of them. But it is natural that those who have more should give more; the more you give the more people expect from you; sometimes you may even feel exhausted by the demand but there is no letup. That is what I'm doing now by asking you to give us more answers about this topic.

 

Now if I may address your question: Why Sharia? And Why now? The answer is justice or rather the lack of it in our country. That is the main driver for the convergence of Somalis to choose now the implementation of the Sharia in Somalia. People beleive that the implementation of the Sharia will bring justice for us in here and here-after. We can ask though can the implementation of the Sharia bring adequate level of justice to the people in our country soon enough?

 

My answer is probable not. Hold on! Save of Divine intervention we can expect adequate level of justice in our country first when two primary conditions are met,namely: 1) when our religious elite are pious, united and steadfastly lead us to the righteous path. 2) Our people are ready to embrace the Islamic way of Life and strive to do their religious obligations to the best of their ability as it is prescribed in the Koran and Sunnah; it is our free will collectively and individually to bring these two conditions into action; as you may agree with me, for now, we are not as ready as we wished. And without peace and unity we may never be there.

 

In fact we are up for a challenge here and it is not all sweets. But in order to solve the challenge the worst thing we could do is to continue to kill one another. Or rejoice when those you disagree with are killed. The justice we are seeking can not come in that manner.

 

In my view brothers and sisters the question is not why Sharia and why now because we have already gone beyond that stage. Using the Sharia as a guide it is more on how we should proceed on in a peaceful way from the present decentralized form of implementation of the Sharia to a coherent unity which has central administration which upholds Islam and lives in peace with itself and its neighbours.

 

Abu_Diaby- Al Zeylac

 

Thanks for your input.I do not endorse nor do I disagree on the review which I presented as a link. I have just chosen it so that we can look the arguements from both the yes and no sides for the implementation of the Sharia. It is ment merely to encourage discussion from all sides in this forum.

 

Finally I would be glad if someone takes up the number 4 sup-topic in my first posting.

 

Thanks

 

The awakener2

[Nur]

Akhi Positive.

 

I have contributed many responses on this topic, below are some relevant ones:

 

1. Definition of Sharia

 

 

Sharia in Arabic language is composed of three letters: Sheen, Raa, and Cayn. It has a single root, which illustrates something that is unfolding ahead of an observer.

 

A. From that root, the following Linguistic meanings are derived:

 

Verbs:

 

1. Sharaca Nur sharcan: meaning; Nur Drank water direct with mouth ( without cup).

 

2. Sharacat Naden Al Madrasa: meaning; Naden approached school.

 

3. Sharacat Naden taktub: meaning: She started writing.

 

4. Sharaca Nur al calama: Nur raised the banner.

 

5. Sharaca al muqaawilu al tariiqa: meaning, The contractor levelled and spread the road ahead.

 

Nouns:

 

1. Shaaric: means INITIATOR, SETTER OF AGENDA.

2. Shaaric: means MODEL of NEW METHOD ( SUNNAH).

3. Shaaric: Main Avenue of a Town.

4. Shaarica: Water Supply, continuous without disruption.

 

 

B. Legal Meanings:

 

1. Sharc: Clear WAY, METHOD OF DOING THINGS.

2. SHARC: All that Allah and His Messenger ORDAINED to be FOLLOWED.

3. SHAARIC: LAWMAKER ( SOVEREIGN), who delegated His Messenger to deliver the law in writing ( Quraan), sayings ( Hadeeth) action or implied approva.

4. Mashruuc: An Ordinance, An Action driven by a law.

 

 

2. The Mandate Of The Sharia Law ( SOVEREIGNTY OF ALLAH)

 

So what is Sovereignty:

 

I will first explain Sovereignty, which is the other face of Democracy that legitimizes its power. I will then Explain what Deity means from Islamic perspective and the Arabic language ( Ilaah) and then examine if my claim was a far fetched or reasonable.

 

 

"SOVEREIGNTY"

 

Sovereignty is defined as "supreme authority within a territory"

 

Its attributes/qualities:

 

1. Authority with Absolute Power ( No other power is greater than it)

2. Self dependent Authority, not by virtue of others

3. Irresistible Authority whose wishes must be obeyed by force.

4. Authority whose power controls its Domain.

 

Some of the attributes of Sovereignty:

 

1.( Absoluteness), Immune to any law, above law, no one escapes its law.

 

2. Supremacy, no other authority is higher than it.

 

3. Unity, the only authority to reckon with.

 

4. Originality, its original in its existence, has not borrowed its existence from another Sovereign, nor is continuation of another.

 

5. Non Transferable Authority, no one can take it away, it will never become legitimate if anyone else claims it.

 

6. An Authority that is always right, since it sets the criteria of what is right and what is wrong.

 

Now what is Deity is Islam:?

 

Allah in Surah Ikhlas desribed Himself as:

 

1. SINGULAR ( AXAD), single

2. SAMAD , Everything Absolutely depend on Him, He Absolutely Depends on Himself ALONE.

 

SAMAD has the Following Variations:

 

3. PROVIDER OF PROTECTION

4. RESCUER ( in times of distress)

5. Highest authority, no one escapes from His Jurisdiction and Sovereignty.

6. Leadership. ( ZACIIM UL QOWM)

7. Anything one follows, even desires are called ilaah in Quraan.

 

Thus SOVEREIGNTY aka (SAMAD) is a Divine trait and those who exercise it unwittingly claim Deity like Pharaoh of Egypt.

 

So, Sovereignty and Democracy are two faces of the same coin, Sovereignty being the legal face while Democracy is the political face.

 

So following Democracy is following someone who claims to be a GOD. While following Allah is following the TRUE GOD.

 

Allah teaches us to say to people of the Book ( Jews and Christians who adopted polytheism : "let us strive to agree to converge to a common ground : That we do not worship other than Allah in any form, that we do not make associate with him other Sovereigns, and further that some of us should not take others for Lords (vested with Sovereignty)." If they turn away, then say: Be witness that we are MUSLIMS, (those who have willingly surrendered to Allah's sovereignty)"

 

Therefore man should not worship man, by giving him a Divine Character, instead man should follow His creator, because a " A problem is not solved at the level it was created" Albert Einstein.

 

 

3. Gradual Application of Sharia

 

 

Q. "i have a question though, if we were to set up a shariah state, is there legitimacy in wanting to establish it in stages?"

 

 

A. Yes indeed, there is a very strong legitimacy for that strategy, Rome was not built in a day, that is simply a strategy after we as a nation have agreed in PRINCIPLE to make Sharia the law of the land in Somalia. The problem lies not in the strategy, but in the objective, if the final Objective is the implementation of Sharia, gradual implementation is not only a good strategy, its also in itself Sharia compliant, since we can not enforce a law that the common man in the streets is not aware of, nor before the government has set up an awareness campaign for the public, nor before the government removed drivers for crime such as stark poverty. At the time of the Caliphate, no thief was amputated during famine. There is an ample room to accommodate all of the concerns that many Somalis have if only they accept the final Objective that we should serve Allah alone, and not His adversaries.

 

 

4. Sharia on Money Matters

 

In Islam, when the legislator, ALLAH makes a law through a verse in Quraan, or through His Messenger, a clear purpose is served by that law, which is known in Islam as Maqaasidul Shariica.

 

As I have written before, the core purpose of the Sharia in Islam is JUSTICE to be served, and from there it trickles down to detailed instruments and legislations that protect that important concept, which in the Science of Maqaasidul Shariica spell out that the Sharia protects:

 

1. Faith

2. Life

3. Wealth

4. Intellect

5. Progeny

 

 

The principle of selling time value of money in Islam is a form of Shirk. How you may ask. You ses sis, everything on earth depreciates, common sense then tells us that money also should, but in the Riba based economy, Money is set to appreciate against all kinds of market forces. That makes the Dollar a quasi GOD, Sovereign on its own merit, and as a result it is worshipped in many money markets worldwide, the biggest church being Wall Street Congregation, and from there devotees from all over the world find themselves bound to this unscapable force.

 

The basic financial instrument in Islamic Banking is known as BBA ( Bayc Bi Thaman Aajil, aka Murabaha) ( iib lagu iibanayo qiimo dib loo dhigay), in Reality, this instrument is still against Islamic spirit which I will explain at length when I have more time inshAllah.

 

Here is how BBA works:

 

There are three parties in the BBA Deal.

 

1. Bank

2. Customer

3. Owner Of Asset

 

First Step: Customer identifies property to be aquired.

Second Step: Bank purchases property from owner on cash basis.

Third Step: Bank sells property it aquired to Customer at cost plus profit margin.

Forth Step. Customer repays Bank in N installments (eg n=60)

 

 

You see sis, Allah SWT says in Quraan, "Allah made trading lawful, and forbade Usury ( Interst), in my upcoming thread Titled: "A Euro Tomorrow is better than a Euro Today! Time Value of Money In Islam. (Hint : Hadeeth Fatima and the leg of the lamb ) " which goes against conventional finance, I will explain the philosophy behind the prohibition of Ribaa and why its different from sale of a property in any arrangement to satisfy your question in depth inshAllah.

 

 

Topics to be addressed:

 

1)Introduction of shari’a in a historical

perspective

 

2)Viability of the implementation of shari’a

in the absence of Islamic state.

 

3)The difference between fiqh and

shari’a and if one of them is

prominent.

 

4)Conditions that has to be fulfilled before a

Shari’a is introduced as the legal system.

 

5)The position of ijtihâd' specially

when it comes to fiqh/Shari'a.

 

 

Will dig some more, to Be continued inshAllah.......

 

 

Nur

[Nur]

Positive bro

 

The following article will partially satisfy your first topic:

 

1)Introduction of shari’a in a historical perspective

 

Below is an old write up of mine (2003) about the implementation of Criminal aspects of the Sharia Law. At that distant time, I was of the opinion that the nation was not ( Aqeeda wise) ready for the Sharia law. My views are not static, everytime I find a wisdom that is rooted in Quraan and Sunnah, I adopt it as the Prophet SAWS said ( Wisdom is the lost property of a believer)

 

The Article:

 

 

Are We Ready For Sharia Law?

 

 

A sister once asked me on another thread the need to enforce the stoning of the adulterer clause in the Sharia in Somalia today, here was my response, please read and reflect, here is the text of my response:

 

Bismillah wa bihi nastaciin.

 

 

Islam is a wholesome way of life, it was completed at the time of prophet Muhammad SAWS. Later, the years that followed, Islam as a community, witnessed blossoming, and then slow death that many are betting that it is all over today.

 

The first community of Islam were persecuted in Makkah, they fled to Medina and found sympathy among the people of Medina who supported this new faith and gave it a launching pad.

 

It was in Medina that the laws of stoning were reconfirmed, as the Jews who lived in Medina had the same law in their holy books ( read Suuratul Maaedah). When I say the laws were reconfirmed , I mean that the laws of Moses were binding until Muhammad SAWS appeared, at that point, the new prophet through divine revelation, had the choice to either abolish or sustain that law. ( the law was sustained)

 

Early in the last Century, The Caliphate, represented by Sultan Abdul Hamid of Turkey was dismantled and a new secular Turkey identifying itself with Europe was born. In a way, the last nail was hammered on the coffin of the Islamic Nation that lasted for 1400 years. Afterwards, nation- states were born and the European nations inherited much of the inheritance of this dead Caliph.

 

Holland Taking Indonesia, and the rest divided in the Berlin Conference that pretty much feasted on the world map as its rightful colonies. As Somalis, we became the property of three colonial masters, The British, Italians and the French. Because of that division, today, we eat fish and chips, spaghetti, and chocolate souffl� respectively. So you can see how united we are as a nation.

 

The last century witnessed the rebirth of Islam, after many Muslim intellectuals dusted out our lost heritage and realized the extent of damage done to our existence as a viable faith and a message for mankind.

 

These intellectuals, from Pakistan to Tunis, called for the rebirth of Islam as a state, not merely as a religion. Because unlike Christianity, Islam was formulated from the beginning as a state for the faithful. The proof of this statement resides in the Library of Congress, not in the card catalogue, but on the Main Dome roof as you walk in, look up the Main Dome Roof to see ISLAM engraved on the roof next to France and Britain as a state among states. A living and a fair testament America is offering the Muslim world for a lasting recognition.

 

Today, Islam is going through tumultuous times to reestablish itself, however, the times have changed not only in the sense of technology, but also in the sense, that, both Christianity and Judaism, our sister religions have been marginalized and are no longer religions for social change, and Islam is expected to follow suit.

 

Based on that quick background, many Islamic activists who want to reestablish Islam as a state for the faithful differ greatly, just as the Jews who have established Israel have differed on the creation of Israel, each one of them interpreting it his own way.

 

But the Jews ( as a faith and nation ) got their state when Britain's Balfour Declaration gave the Jews Palestine after the holocaust and the fundamentalist Jews were forced to go with the secular interpretation of the creation of Israel.

 

So today Muslims are living in nation states, grouped along geographical and ethnic lines, not faith. The laws of these nations are secular in nature with some honor mentioning of Islam as the official religion of the state, in most so called constitutions. The practical laws of these nations are the European colonial laws, like the French law, which ironically have borrowed some laws from the Hanafi school of thought, specially in the inheritance law.

 

In light of that background, and the fact that Islam as a legal entity is disenfranchised, taking the Islamic law into ones hands will portray Islam very badly to an audience that is in dire need for it.

 

Applying part of Islamic laws in makeshift courts, will alienate those who are sympathetic to Islam, because the beauty of Islam resides in its enforcement of Islamic laws as a WHOLESOME and COMPLETE jurisprudence, not selective pieces and parts.

 

The laws of Islam can only be enforced within a community that is willing to abide by the moral of the law before the letter of the law, and we all know, that such a community, does not exisit today, even if it exists in a geographical terms, it does not yet have the international community mandate or understanding that it needs to declare such a sovereign state.

 

We are thus in changing times, and as times change, we are suddenly finding ourselves again in old Mecca township and village setting, a small world after all, indeed.

 

And as such, we as Muslims have to deal with this new reality wisely by looking into the early Meccan period and the persecutions of the faithful and the Divine strategy of focusing their attention on the spiritual aspect and prayers and not on wars, retaliation and revenge, even when when unjustly attacked, Allah says:

 

( stop retaliating and establish regular prayers) Quraan.

 

In conclusion, Islam today governs the individual, not the community, so, up until a willing community which can best represent Islam in all spheres of life is born, applying the Islamic law in parts may not serve the best interests of Islam. A spare part for a Ford, will not work on a GM.

 

Wallahu Aclam

 

 

Nur

 

2003 eNuri Fiqhul Aqeedah

Wisdom Without Knowledge is better than Knolwedge without wisdom.

[Positive]

Brother Nur,

 

This is excellent stuff you have presented in here. I personally admire it and I don’t know where I got the idea that we differ in the nature and the process of the implementation of the Sharia but the similarities strike me now.

 

Just to recap again points that we agree:

 

Are we ready for the implementation of Sharia now?

 

 

You wrote:

 

Below is an old write up of mine (2003) about the implementation of Criminal aspects of the Sharia Law. At that distant time, I was of the opinion that the nation was not ( Aqeeda wise) ready for the Sharia law. My views are not static, everytime I find a wisdom that is rooted in Quraan and Sunnah, I adopt it as the Prophet SAWS said ( Wisdom is the lost property of a believer).

 

…………Applying part of Islamic laws in makeshift courts, will alienate those who are sympathetic to Islam, because the beauty of Islam resides in its enforcement of Islamic laws as a WHOLESOME and COMPLETE jurisprudence, not selective pieces and parts.

 

The laws of Islam can only be enforced within a community that is willing to abide by the moral of the law before the letter of the law, and we all know, that such a community, does not exisit today, even if it exists in a geographical terms, it does not yet have the international community mandate or understanding that it needs to declare such a sovereign state.

 

………….so, up until a willing community which can best represent Islam in all spheres of life is born; applying the Islamic law in parts may not serve the best interests of Islam. c

 

I wrote quote:

 

…… can the implementation of the Sharia bring adequate level of justice to the people in our country soon enough?

 

My answer is probable not. .... Save of Divine intervention we can expect adequate level of justice in our country first when two primary conditions are met, namely: 1) when our religious elite are pious, united and steadfastly lead us to the righteous path. 2) Our people are ready to embrace the Islamic way of Life and strive to do their religious obligations to the best of their ability as it is prescribed in the Koran and Sunnah; it is our free will collectively and individually - which has- to bring these two conditions into action; as you may agree with me, for now, we are not as ready as we wished.

 

 

We agree that the people have to be educated first and their moral values emancipated. It is also my understanding that We also agree, that any criminal procedures which have been done on the name of Sharia,until now, could be classified as haste work and does not serve the best interest of Islam.

 

Did I mention about the desecration of the cemeteries? No but that can wait!!

 

The Awakener2

[Naxar Nugaaleed]

would applying sharia make Somalia a theocracy?

[Naxar Nugaaleed]

"The population of Somalia is 100% Muslim"

"Being a Muslim means you follow the laws of allah"

So whats the point of applying something everyone is already following? If there is a need, one of those statements is false. Should citizens fear God or the people who interpret his Laws. Many of you will say of course God but then what is the need of these people to interpret or apply Gods laws?

[Positive]

Naxar Nugaaleed,

 

I personally think that applying sharia will not make Somalia a theocratic state. If we have to implement sharia it is natural we call experts from the religious field specially sharia and fiqh. Without them the implementation will probable become only nominal and nothing will change for us.

 

As to the assertion that we are ‘100% Muslim and ( already ) follow the laws of Allah’ you may ask why do we kill one another then? It is for bidden to kill a fellow Muslim and we have been doing this for centuries without regret or remorse. From the line of your thought One can not help but think if the people who have been doing this are already following the Sharia then there must be something wrong with the Sharia itself. The fact is we are NOT following anything of value let alone Sharia.

 

The aspects of the interpretation of Koran and Sunnah will be covered in this topic. Among other things the position of ijtihâd' specially when it comes to fiqh/Shari'a will probable be discussed in detail.

 

hence hold your horse and wait what comes through the pen of the contributors.

 

feel free though to forward you concerns and questions.

 

Thanks.

 

The Awakener2

[Muriidi]

what about stuff like ...we should first forbid firearms then khamr then make hijab obligatory then censor films and control drugs....

 

sharia law is more complicated than just reading holy texts and applying them literally although that is a safe way...or is it.

it's like saying you just want janna but you don't love God and his messenger.

 

sharia implementation from the top(government) is not possible.it starts with every family and community,

like someone who takes drugs and stumbles around(yatakhabbat) trying to find his sanity(natural state) again.

if we follow the U.N. model,a studied person in muslim sharia can open a law office near a community and assist/advise a community in sharia issues.

like different imams in mosques have different recitations they still have the same effect for someone praying behind them.

different judges in different communities might have different views but they don't disagree!

the most important aspect while implementing hudud(the boundaries)

is the believers zahd fi duniya(The reluctance in the world). a person who says "la ilaha illa Allah" will repent and accept his punishment and accept the authority of his community's elders.

it all works very well and has been working for a while.

 

smile,say bismillah and salli ala nabi...this could take 300 years.

 

1- them governments don't exist,it's just the devil's human resources.

2- consider everyone muslim until you see otherwise.

3- teach quran and hadith, it makes islamic courts unnecessary.(tawbikh ) seeing the effect of the holy texts you read in everyday life is tawbikh enough!

[Nur]

Muridi bro.

 

You write: ". we should first forbid firearms"

 

Where in the Quraan and Sunnah do you find that we should ban firearms?

 

American Constitution agrees with Islam in securing the right to bear arms for a persons self defense which is the most basic human right, specially when the government who is supposed to protect its citizens fail to protect or at times it violates their human rights.

 

Nur

[Muriidi]

where in quran or sunnah do you find that zina means adultry?

 

what is asaatiirulawiin but this godless political science?... wait now we entered dangerous terrain.

 

iimaan or faith is not something that can be taught , prayer and life experience i guess.

 

warm camelmilk?

 

don't you think the prophet mohamed pbuh could have competed with abu lahab?i mean he had relatives with money and good name in quraish who could have promoted him all the way to king of the whole area,doing great business with abu lahab and the arabian empire....

..NO mohamed pbuh and his FOLLOWERS just left!

because the essence is not about winning a fight it is about installing God's word.

 

me as a muslim the oppurtunity to face kuffar in open combat with the possiblity of martyrdom is a great reward.

but those who draw the sword at every occasion are not considered faithful.

 

in quran or sunnah i haven't found any detailed discussion of how kuffar do their business.

 

one goes to the mosque beacause there you don't have to watch tv surf the net or tell a tale about the pharao.

but your women and offspring have rights and you can't stay in the mosque all day...but if you go to the mosque only twice a day over a period of time....

 

american law?

that's easy.

they are under arrest if they can't afford a lawyer one will be appointed..but why would you ask a priest for a gun permit ?

 

i know incoherent thoughts not formulated theories, but who's on trial ?

 

jazaak Allahu khayr bro

[Sherban Shabeel]

I think there should be something done about firearms, maybe like one of those laws in the Wild West, where you couldn't walk around town with your guns. Maybe just stash em all in the ground and take em out in cases of national emergency (like an invasion).

 

While I realize this is highly idealistic, imagine a Somalia with no AKs, only spears. Just like old times. Imagine how many lives would be saved.

 

If you have a dispute with your neighbor, instead of spraying everyone with your machine gun, BE A MAN and stab him with your spear or knife. Any wimp can squeeze a trigger, believe me, but it takes a real man to break a spear in somebody's spine.

 

I think that would help curb violence.