Longread: Revisiting the Mystery of Shari’a

Longread: Revisiting the Mystery of Shari’a

The term shari’a often sparks strong emotions - either in favour, or against. While shari’a has become the subject of growing concern in Western societies over the past decades, crucial questions as to the conceptualization of this notion have remained largely unexplored.

How can one define shari’a and what does it encompass? Has it been a monolithic concept throughout history and does it mean the same thing to everyone? This blog intends to shed some light on these questions.

Are we really talking about the same thing?

The famed thirteenth-century Persian poet Jalaluddin Rumi, is known for his panegyrics on love and is among the best-selling poets in the United States. Although his mystical poetry has been, to a large extent, uncoupled from its Islamic roots by the Western translators of the Victorian period, he was indeed a theologian and often referred to Quranic verses in his poetry. Some Hollywood stars who have tattoos featuring Rumi’s poetry and Tiffany Trump who recently posted a Rumi quote on her Instagram will most probably be surprised to find out that Rumi praised shari’a! In his introduction to book five of Masnavi, Rumi describes shari’a as a candle that lights the way for those who want to begin their spiritual journey. Once the path is illuminated, the sufi continues the journey (tariqa) with an ultimate quest for truth (haqiqa).

This begs the question how a mystic poet like Rumi, with all his profound belief in love and humanity, can consider the harsh rules and sanctions attributed to shari’a to be the light illuminating the path of spiritual journey?

Shari’a deconstructed

The Arabic word shari’a means the path leading to the spring. The Quranic verse specifically referring to the word shari’a reads: “Then we put thee on the Way of religion so follow thou that (Way), and follow not the desires of those who know not.” (45:18)

Although today the word shari’a is exclusively associated with Islam, the earliest Arabic translations of the Torah and the Old Testament from the tenth century CE also referred to the shari’a of Moses and the shari’a of the Messiah. The Quran itself makes clear that Muhammad was not the first prophet to whom shari’a was prescribed:

“He has prescribed for you the Way which He has enjoined upon Noah, and which We have revealed to you, and which We had enjoined upon Abraham, Moses and Jesus, declaring, ‘Maintain the Way, and be not divided in it...’” (42:13)

Shari'a is believed to be the path to faithfulness for those who seek closeness to the Source, i.e., God. To find this path, an observant Muslim needs a code of behaviour for everyday life that equally regulates an individual’s relationship with God and with other fellow humans. As such, in Quranic verses, speaking well to and of others (23:3), compassion towards parents (2:83), and helping the orphan (2:83) are not categorically different from respecting contracts (17:34) and prohibiting homicide (17:33). They are respectively acts of good (ṣāliḥāt) or evil (sayyiāt) that should be performed or refrained from by believers (muʾminun).

Although the Quran does not distinguish between legal and moral rules, in the contemporary Islamic discourse, some legal scholars have limited the meaning of shari’a to law and jurisprudence in its modern sense. This discrepancy in definition has created certain conceptual confusion. As has been pointed out by Jan Michiel Otto; “[l]ike its counterpart ‘Islamic law’ the term ‘sharia’ is surrounded with confusion between theory and practice, between theological and legal meanings, between internal and external perspectives, and between past and present manifestations.”

In Understanding Sharia in the West, Maurits Berger has identified three representations of shari’a. In an attempt to briefly demystify the ambiguities around the unsettled notion of shari’a, I adopt these three representations and build on them:

1. Shari’a as an ideology or slogan:

According to Berger, regardless of being pro or anti shari’a, users of the term shari’a conceptualized as an ideology, have little clue about its precise meaning. Depending on the views of the people talking about shari’a in this sense, shari’a can be conceived as the solution to all the problems of mankind or as an outdated system that belongs to seventh-century Arabia. For many devout Muslims, shari’a is comparable to the notion of justice; something good that should be sought. Conversely, for some fierce critics of shari’a, it represents the widespread image of an Orient that is cruel and backward. In both instances, the term is used in generalized statements which overlook or deny the diversity in interpretation of religious texts.

2. Shari’a as classical (legal) scholarship:

In this sense, shari'a encompasses the texts and literature concerned with finding and interpreting the rules of divine law. These conclusions are the result of interpreting and studying the primary Islamic sources to infer rules. Theoretically, the Quran, the sunna (reports on what Prophet Muhammad said (hadith) and did, including his tacit approvals), ejma’a (scholarly consensus built around an issue by Islamic jurists), and qiyas (analogical reasoning) are the formal sources of the Islamic legal tradition for the mainstream Sunni Islam. By contrast, Shi’a jurisprudence and a minority of Sunni jurists recognize ʿaql (reason in the sense of “categorical judgments drawn from both pure and practical reason”) instead of qiyas. Moreover, while Sunni Muslims extend the sunna to the deeds and sayings of companions of the Prophet, for Shi’a Muslims, the sunna encompasses the sayings and deeds of all fourteen infallibles. In addition to these formal sources, certain presumptions and principles like justice preference (istihsan), public interest (maslahah), and presumption of continuity (istishab) aid the jurist in extracting the rulings for new cases.

The subject matter of these rules covers a wide range of issues from praying, fasting, burial, and method of ritual slaughter to contractual obligations and penalties for wrongdoing. In fact, while Islamic ritual laws bear resemblances to Jewish law, Islamic social and political rules seem similar to Roman law. Such a combination of ritual rules and legal rules (in the narrow non-transcendent sense) has led some scholars to cast doubt on conceptualizing “the sacred law of Islam” as “a legal system proper.”

It is true that many Islamic rules can hardly reflect an Austinian concept of law comprising command and coercive enforcement. Nonetheless, inasmuch as the split between law and morality seems unquestionable today, such a distinction was not taken for granted in pre-Enlightenment Europe and other pre-modern societies either.

That said, even the early Islamic scholarly literature has divided its subjects into two main sections: ritual duties (ʿibādāt) and issues of interpersonal relationships (muʿāmalāt). However, even this distinction cannot be objectively comprehended if one judges the past using present notions of law and morality. After all, Islam and its prophet operated within the religious, moral, and political landscape of ancient Western Asia where God (or gods) were naturally regulating how one should behave towards everyone and everything.

In addition to the academic controversy surrounding the legal nature of Islamic divine rules, long and numerous debates have also arisen over when Islamic jurisprudence was born. While some argue that it can be dated to the time of Prophet Muḥammad, others believe that it was only after the middle of the eighth century CE that Islamic jurisprudence began to gain significance. What seems undisputed, however, is that unlike State-based legal systems, Islamic law as such has no codified and comprehensive authoritative body of rules. It has been developed by scholars interpreting Islamic sources to find an answer for particular factual scenarios articulated in concrete requests. Gradually, the product of these inquiries was brought together, abstracted into legal formulas and systematized as legal literature.

Studying this legal literature in isolation from its social context results in an incomplete or even distorted image of the system. This is mainly because in the early centuries of Islamic history (roughly from the beginning of Islamic history to the end of the eighth century CE), Islamic society was a fusion of several elements comprising laws, customs and norms from a multitude of traditions including tribal, Roman-Byzantine, Zoroastrian, Jewish, and Syriac Christian. Such a diverse context allowed legal norms to be generated by “family, the clan, the tribe, the village, the neighbourhood, the socio-religious community and the dynast.”

These corollary systems and norms inevitably interacted with Islamic norms and they both exerted influence on each other. Some of these corollary norms were fiercely rejected by Islamic norms whereas others were tacitly or explicitly embraced. Arguably, one can also think of the role of these corollary norms in shaping unconscious and conscious assumptions in the minds of the jurists, influencing the interpretative account they have produced of Islamic sources.

3. Shari’a as applied by states since the last century:

In this sense, shari’a is considered as a body of rules laid down by political authorities and backed by coercive sanctions. Although by 1900 the scope of application of Islamic rules in the majority of Muslim lands had been confined to personal matters, since the 1970s certain countries have taken measures to codify rules based on Islamic jurisprudence. These attempts were highly influenced by anti-colonial movements and sought to introduce social and political changes. In certain countries, this led to the implementation of the so-called shari’a as a system of state law in its modern sense. Such a process took different forms in different countries, from making specific constitutional declarations on being an Islamic republic to simply designating Islam as the official state religion or recognizing Islam as a source of law. Despite these differences, the initial calls for Islamic legal systems seem to insist on shari’aas a general concept of order and justice, without necessarily offering a nuanced approach (the first representation of shari’a discussed above). To codify Islamic rules, legislatures had to refer to the corpus of Islamic scholarship (the second representation of shari’a discussed above) and make choices based on the school of thought they followed.

Eternality of shari’a as opposed to fallibility of fiqh

The problem with the unqualified use of the umbrella term shari’a in any of the abovementioned contexts is depicting shari’a as a homogenous concept. The truth of the matter is that except for a few Quranic and Prophetic statements, which unambiguously contain clear normative rulings, the other rules are the product of the comprehension and findings of scholars derived from primary and secondary Islamic sources (a reasoning process known as ijtihad).

The products of such reasoning are far from a fixed homogenous body of rules. First of all, while according to the majority view the Quran is the literal word of God, the Prophetic sunna was not recorded and written during the Prophet's lifetime. As a result, the reality of human limitations has left its imprint on the transmission, preservation, and interpretation of reports on deeds and sayings attributed to the Prophet. Moreover, a faqih or jurist derives the rules by engaging in scholarly reasoning, while taking into account the ideas within the works of their predecessors and colleagues. As such, these findings are not eternal and in principle, they are open to re-interpretation in the light of, inter alia, new social, economic, educational and political circumstances. As a consequence of this pluralism, Berger suggests that “[s]haria may be singular in source but not necessarily in outcome.”

This brings us to the distinction between shari’a and fiqh. While shari’a can be understood as an abstract concept of divine will or the path laid down by God, fiqh comes into play when divine law is derived and articulated by human scholars. Such human understanding, as mentioned above, is inevitably tainted by particular geographical and cultural characteristics of the time. Fiqh as a man-made construct of God’s will is therefore not immune from difference of opinion and possibility of error.

Sadly, the fallibility of fiqh is often overlooked by all sides of the discourse on the so-called shari’a law. Attitudes of self-centrism and self-referentialism can be seen among both proponents of shari’a and its opponents. Indeed, ignorance, oversimplification, and prejudice have hindered an open discussion about the evolution of Islamic rules throughout history.

Nonetheless, a first-hand study of classical and modern Islamic scholarship reveals that reformist and pluralistic approaches towards Islamic jurisprudence is not completely alien to Islamic scholars. According to Abu-Hamid al-Ghazali, one of the most prominent jurists of the eleventh century, the objective of the shari’a is maslaha (public interest) which protects religion, life, intellect, lineage, and property. He denies the rigid adherence to the outward form of religion and calls for bringing together reason and revelation: “[f]or, someone who declines to use reason, being satisfied with just the light of the Qurʾān, is like someone who stands in the light of the sun with his eyes shut. There is no difference between that person and someone who is blind. For, reason, together with the Qurʾān, is light upon light.” Later, in the early twentieth century, the British-Indian poet, philosopher, and politician Allama Muhammad Iqbal and Egyptian religious scholar and liberal reformer Muhammad Abduh called for independent reasoning in reinterpreting earlier rulings.

This stream of thought has been followed by certain contemporary scholars and activists and occasionally even by certain Islamic jurists. To name but a few: Muhammad Saʿid al-ʿAshmawi, a late Egyptian Supreme Court justice, has suggested returning to the distinction between shari’a and fiqh and thinking of shari’a as “a spirit, a method, and a movement, which give rise to, infuse, and renew the laws but are not imprisoned in them.” Abdolkarim Soroush, an Iranian intellectual reformist, considers most of the precepts of fiqh (including parts of the scripture) as the historical Islam which is accidental (i.e., could have been other than they are) as opposed to being essential. He calls for a new paradigm in the discipline of fiqh which is based on “cultural translation” of the accidentals. Mohsen Kadivar, an Iranian Islamic studies scholar, promotes an interpretation of fiqh based on the spirit of Islam and the goals of the Quran. Among contemporary Muslim jurists, Seyed Kamal Haydari has openly criticized the fiqh-centred education at Islamic seminaries, where often the overarching landscape of justice and moral values embodied in Islamic teachings are undermined.

Literal adherence to the letter of the prophetic traditions is common among Islamic jurists giving rise to opinions that occasionally seem isolated from the underlying values of Islamic teachings. Moreover, it seems that for most of the Muslim jurists, the process of ijtihad has been transformed into upholding a convenient status quo by quoting "the majority opinion." This manifests in a practice of rehearsing the interpretations presented by their predecessors rather than reconstructing the scripture in the light of a new context. Often, when confronted with conflicting positions and criticism of certain unreasonable findings with regard to life today, an apologetic response will further discourage any open discussion among all sides of the discourse.

This situation is surely far from ideal. When looking at the roots of this problematic situation, one cannot deny the destructive role of external oppressive forces such as colonialism and imperialism in nurturing certain apologetic attitudes among Muslim scholars. Today, although the mainstream media is full of propaganda preaching to Muslims about the necessity of reform in their religion, in practice, attempts by Muslim reformers who still see merits in Islamic traditions are received with suspicion and distaste by the very same propagandists. Nevertheless, one can also not overlook the failure of the majority of Islamic jurists to meaningfully contribute to an honest and open discourse about their methodology and the reasonableness of their findings in light of the core moral values of religion as well as our contemporary societal context.

Final remarks

Although the distinction between the terms shari’a and fiqh is apparent in past Islamic jurisprudential texts, the prevalent conflation between these two terms persists in Western discourse and has also found its way into the modern Muslim discourse. The imprecision in the use of these terms has serious ramifications in the attempt to forge humane interpretations of scriptures as the sacred, universal and unchangeable law. This evidently paves the way for authoritarian interpretations and suppression of criticism.

Further, such inaccurate use of an untranslated Arabic term reinforces the widespread self-centrism of the actors on all sides of the discourse. The shari’a is an exotic concept which simply fits the Oriental Other stereotype where Muslims have a collective and fixed identity which is inferior to the Western counter-identity. Ironically, othering Muslims and Islam reinforces self-referentialism among certain Islamic communities where Western arrogance is countered by Islamic apologetic strategies.

As suggested by Marie-Luisa Frick and Andreas Müller in their introduction to their co-edited book Islam and International Law, the way forward seems to be giving voice to the plurality of perspectives. The resulting heterogeneity might seem discordant, but it is surely the first step towards challenging attitudes of self-centrism.

-- This blog was originally published on the Leiden Law Blog --