Islamic Sharia vs. Positive Law: A Comprehensive Refutation of the Claim That Man-Made Laws Are Superior

Islamic Sharia is from Allah — the Knower of all things — and it cannot be compared to laws made by humans, any more than the earth can be compared to the sky. Some skeptics claim that man-made positive laws are more compatible with the spirit of the age than the provisions of Islamic law, and therefore more suitable as a constitution for the modern state. They argue that the provisions of Islamic law are fixed and do not change, while man-made laws change with time, place, and circumstances.

This argument aims to undermine the flexibility of Islamic law on one hand and brand its provisions as rigid and unsuitable for contemporary application on the other. The refutation proceeds across two main aspects: first, the nature of Islamic Sharia and its dual characteristics of stability and flexibility; second, the testimony of revelation, history, and reality for the Sharia and against positive law.

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Part One: Between Islamic Sharia and Positive Law

The Fundamental Difference — Divine vs. Human Origin

There is no similarity between the provisions of Islamic Sharia and positive laws that would justify anyone balancing between them, let alone asserting the superiority of the latter:

The Sharia was revealed by the Lord of the earth and the heavens, who knows the secret and what is more hidden, and who alone is able to provide people with the means of goodness and happiness. As for man-made laws — how can they fulfill the needs of all people when some of them have invented them? These laws, in their entirety, are incapable of fulfilling the needs of one era in different countries, or one country in different eras.

Abdul Qadir ‘Awda, may Allah have mercy on him, states:

The error these claimants make is an error of false analogy: they learned that the positive laws prevalent until the late eighteenth century are not suitable for the present age — and this is correct — and they then conclude that Islamic Sharia, which was prevalent in the Middle Ages, is similarly unsuitable. The grave error in this analogy is that they equated positive laws established by humans with the Islamic Sharia established by the Creator of mankind. When they compare, they are comparing the earth to the sky, and people to the Lord of people. Comparison requires equality between the things being compared; where there is no equality, there is no valid comparison.

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The Origin of Positive Law

Positive law originates in the group that it regulates. It begins small and limited, then grows, increases, and its theories become more sublime as the needs of the group increase and diversify. Positive law is like a newborn — it originates small and weak, then grows stronger little by little. Its development is linked to the development of the community it governs; it is subordinate to it, and its progress is chained to its progress.

When scholars of positive law speak of its first emergence, they say: it began with the formation of the family and tribe, where the word of the head of the family was the law of the family, and the word of the sheikh of the tribe was the law of the tribe. When states began to form, they unified customs and traditions into binding law — but the law of each state did not agree with the laws of other states. This disagreement continued until the final stage of legal development began in the aftermath of the eighteenth century, guided by philosophical, scientific, and social theories — the basis of which is justice, equality, and humanity.

This summary makes clear that when law was created, it was something completely different from what it is now — and it did not reach its current form except after a long, slow development lasting thousands of years.

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The Origin of Islamic Sharia

If the emergence of positive law was a gradual process resembling the stages of children’s growth, Islamic Sharia did not follow this path. The Sharia was not a few rules that then increased, nor scattered principles that then gathered, nor initial theories that then refined. Sharia was not born as a child — it was born a complete young woman.

Allah revealed it from His heaven to the heart of His Messenger Muhammad ﷺ in a short period — from the beginning of the mission to its conclusion — as a complete, comprehensive Sharia in which there is no crookedness and no deficiency:

Sharia did not come for one group rather than another, or one people rather than another, or one state without a state. It came for all people — Arabs and non-Arabs, Easterners and Westerners, with their different backgrounds and varying customs. It is the law of every family, every tribe, every group, and every state. Indeed, it is the universal law that scholars of positive law were able to imagine but were unable to create.

The Sharia came complete, with no deficiency, comprehensive, governing every situation. It includes the affairs of individuals, groups, and states; it regulates personal status, transactions, government, administration, politics, and the relations of states with each other in war and peace. The Sharia was formulated in such a way that the passage of time does not affect it, nor does it require changing its general rules and basic theories — because its texts were so general and flexible that they govern every new situation even if it could not have been anticipated.

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Three Fundamental Differences Between Sharia and Positive Law

First: Source — Human Deficiency vs. Divine Perfection

The law is made by humans and represents the deficiency, helplessness, weakness, and limitations of humans. Hence, it is subject to change and alteration whenever the community develops to an unexpected degree or unexpected situations occur. The law is always imperfect and cannot reach the level of perfection as long as its maker cannot be described as perfect and cannot comprehend what will be.

As for the Sharia, its maker is Allah, and it represents the Creator’s power, perfection, greatness, and comprehension of what was and what is:

Allah formulated the Sharia in a way that encompasses everything in the present and the future, just as His knowledge encompasses everything. Allah’s law and rulings came in this manner of permanence and stability because they do not need to be changed or altered, no matter how countries and times change and how man develops.

Second: Temporal vs. Permanent

The law is temporary rules that the community establishes to organize its affairs and meet its needs. Laws are rules that are behind the group, or at the level of the group today and behind the group tomorrow — because laws do not change as quickly as the community develops.

As for Sharia, it is rules that Allah permanently established to regulate the affairs of the community. Its rules are permanent and do not accept change or alteration. This feature requires, from a logical standpoint, that the rules and texts of Sharia be flexible and general enough to accommodate the needs of the community no matter how long the time and how much the community develops; and that they be lofty and elevated, such that they cannot fall behind the level of the community at any time or age.

In fact, what logic requires is available in both aspects in the Sharia — and it is the most important thing that distinguishes Islamic Sharia from other laws. The rules and texts of Islamic Sharia are general and flexible to the utmost limits, and they have reached a level of loftiness beyond which no loftiness can be imagined. Islamic law has been around for more than fourteen centuries, during which conditions changed more than once, ideas and opinions developed greatly, sciences and inventions were created unimaginable to human imagination, and the rules of positive laws applied at the time of the revelation have changed. Despite all this, the rules and texts of the Sharia remain above the level of communities, more capable of organizing and meeting their needs.

These two texts have reached a level of generality, flexibility, and ease that cannot be imagined after which any further generality, flexibility, or ease could exist. They establish Shura as the basis of ruling and the removal of harm as the basis of jurisprudence — in a manner that no human legislator has surpassed.

Take for example:

Third: Group Creates Law vs. Sharia Creates the Group

The group is the one that makes the law and colours it with its customs, traditions, and history. The law is originally established to organize the affairs of the group — and not to direct the group — so the law is behind the group and subject to its development.

As for Islamic Sharia, it was not created by the group. It was created by Allah who perfected everything He created. The group itself is the creation of the Sharia, because the purpose of the Sharia before anything else is to create righteous individuals, a righteous group, an ideal state, and an ideal world. For this reason, its texts came above the level of the entire world at the time of its revelation — and remain so today. It contained principles and theories that the non-Islamic world was not able to know and reach until many centuries later, and has not been able to fully reach even now.

This is what the Sharia achieved: it made camel herders masters of the world, and ignorant desert dwellers teachers and guides for humanity.

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The Dual Characteristics of Islamic Sharia: Stability and Flexibility

Dr. Yusuf al-Qaradawi explains the scope of each:

Stability is found in the five basic beliefs; in the five practical pillars of Islam; in the certain prohibitions established definitively in the Quran and Sunnah; in the mothers of virtues such as honesty, trustworthiness, chastity, patience, and modesty; and in the definitive laws of Islam in matters of marriage, divorce, inheritance, punishments, and retaliation. These are fixed — mountains move before they move — and no assembly, conference, caliph, or president has the right to cancel or suspend any of them.

Flexibility is found in the sources of ijtihad — consensus, analogy, preference, public interest, the sayings of the Companions, and other sources — which the jurists of the nation used to accommodate every new event and need.

Ibn al-Qayyim states in Ighathat al-Lahfan that rulings are of two types: the first does not change from a single situation — such as obligations, prohibitions, and the limits determined by the Sharia for crimes; the second varies according to interest in time, place, and situation — such as discretionary punishments and their types, which the Lawgiver diversifies according to interest.

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Part Two: The Testimony of Revelation, History, and Reality

First: The Testimony of Revelation

Allah revealed this law with His knowledge to Muhammad ﷺ to establish His justice on earth and achieve the interests of servants in this life and the hereafter. His wisdom required that the laws of messengers before Muhammad ﷺ be limited and timed — for specific peoples in specific time periods — as humanity had not reached a stage allowing it to accept a general and eternal Sharia. For this reason, Allah did not guarantee the preservation of those earlier books — and they were distorted verbally and semantically, with the words of God mixed with the words of humans.

When humanity reached its final stage, Allah sent Muhammad ﷺ to be a mercy to the worlds:

Allah also guaranteed the preservation of the Quran — the first source of the Sharia:

This divine promise — confirmed in more than one form — encompasses the preservation of the Sunnah as well, since the Sunnah is the explanation of the Quran, and preserving the one who explains requires preserving the explanation. Moreover, the Islamic nation does not agree on misguidance:

Second: The Testimony of History

The Islamic Sharia ruled the peoples of the Islamic nation for thirteen centuries, entering various countries — some deeply rooted in civilization, others close to nomadism, and others in between. It faced different systems — financial, administrative, political, and social — as well as strange events and new problems that had no parallel in the era of the Prophet ﷺ or in the land of the Hijaz.

The explanatory memorandum of the decision issued in the Libyan Arab Republic to form committees to review legislation states:

Third: The Testimony of Reality

The Failure of Secularism

The countries that completely turned away from Sharia and declared complete secularism reaped nothing from that except disappointment, disintegration, and failure. The most prominent example is the secular state of Turkey — Ataturk’s Turkey — which stripped the Muslim country of its Sharia with iron and fire, forced it to follow the path of the West step by step, and gained nothing except remaining a tail to the Western camp in its legislation, policy, and economy. After it was a global power, it became torn apart by conflicts between right and left.

The Effects of Applying the Legal Punishments

The most exposed to attack from critics of the Sharia are the punishments that came clearly and distinctly in the Book of Allah, especially:

Reality shows with our own eyes how the Kingdom of Saudi Arabia established this punishment and achieved unparalleled security — to the extent that a man leaves his shop open and goes to his prayers without a guard, and nothing is stolen from him. This is despite what the country itself suffered before the establishment of the punishments from terror and insecurity; despite widespread illiteracy; despite the enormous crowding during Hajj and Umrah seasons; and despite shortcomings in many other teachings of Islam.

A few hands cut off according to Islamic law, and people became safe in their homes, businesses, lives, and money — as attested by both enemy and friend.

The Sharia Preceded the Most Recent Legal Theories

Among the theories that positive law claims as its modern achievement, Islam preceded by twelve centuries. The four rules of “tax justice” attributed to Adam Smith — certainty, suitability, economy, and justice — are all present in Islamic law:

In the rule of justice alone, Islam preceded with six basic principles: equality among those obligated to pay zakat regardless of individual, class, or gender; exemption of wealth below the nisab; prevention of double taxation; variation of zakat amounts according to effort and irrigation method; taking into account the personal circumstances of the wealth-holder including the minimum standard of living; and justice in application through righteous, strong, and trustworthy collectors.

Two further examples of theories the modern world reached only after Islam had already established them: divorce — which all Western countries were eventually forced to recognize, the last of which was Italy, with an international conference held in The Hague in 1986 preparing a treaty to recognise divorce at the international level — meaning a return to the rule of Islam; and usury — which they claimed was necessary for economic life, until the British economist Keynes concluded that society cannot reach full employment except by eliminating the interest rate.

The Sharia Made the Early Muslims Masters of the World

The history of Muslims is a sign and a lesson. The Islamic Sharia created the Muslims from nothing, made them a nation above the nations, and gave them authority over the countries of the world. The early Muslims — a weak minority fearing that people would snatch them away — became, within twenty years, masters of the world and leaders of mankind. There was no voice but theirs, and no word louder than theirs. What brought them to this was the Islamic Sharia, which taught them, disciplined them, softened their souls, refined their feelings, made them feel pride and dignity, brought them to complete equality and absolute justice, obliged them to cooperate in righteousness and piety, forbade them from sin and aggression, and freed their minds and souls from the yoke of ignorance and desires.

When the Muslims abandoned the Sharia and neglected its provisions, progress left them, they failed to advance, and they regressed. They imagined — while in this state of confusion — that the progress of the Europeans was due to their laws and systems, and went to receive them and weave on their pattern, forgetting the words of Umar ibn al-Khattab (may Allah be pleased with him):

What al-Faruq said came to pass.

The historian of civilization Will Durant — despite his misunderstanding of Islam at times — could not help but acknowledge that the first caliphs from Abu Bakr to al-Ma’mun had established the good and successful systems for Islamic life in a wide area of the world, and that they were among the most capable rulers in all of history. Iraq was a barren desert before the Islamic conquest; its land became a vast garden. Much of Palestine before the conquest was sand and stones; it became fertile, rich, and populated. The caliphs spread prosperity for six centuries in regions that had never seen such prosperity after their era, and under their encouragement education spread, and sciences, literature, philosophy, and the arts flourished to a degree that made Western Asia for five centuries the most advanced region in civilization in the whole world.

Gustave Le Bon states in The Civilization of the Arabs:

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Conclusion

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