What is Shari'ah

Abstract:

Written by leading scholars, the Focus On essays are designed to stimulate thought and enhance understanding of vital aspects of the Islamic world. New essays on specific themes, with links for further reading, are published throughout the course of the year. Earlier features and links will continue to be available for subscribers.

What Is Shari’ah?
By:
Tamara Sonn

Reference:
http://www.oxfordislamicstudies.com/Public/focus.html

For many people, the term shari‘ah sets off alarm bells. Visions of court-ordered amputations and stoning arise in the popular imagination. Commentators point out that the European Court of Human Rights has pronounced some components of shari‘ah, particularly those dealing with pluralism and public freedoms, incompatible with fundamental principles of democracy. And fears of “creeping shari‘ah” have inspired hundreds of Web sites warning that Muslim fanatics intend to reestablish the caliphate and bring the entire world under Islam’s harsh legal system.

The concerns expressed in these reactions reflect a common misunderstanding of the term shari‘ah. The misunderstanding stems from the fact that the term has two meanings. In its most common usage, shari‘ah (way, path) refers to Islamic law. Muslim countries throughout the world have shari‘ah courts, which deal with matters such as marriage, divorce, and inheritance. In some countries, such as Saudi Arabia and Pakistan, the jurisdiction of shari‘ah law extends also to certain aspects of criminal and commercial law. Both countries, for example, incorporate the ḥudūd punishments into their legal codes. The ḥudūd punishments—such as stoning for adultery and amputation of the hand for theft—were established in the earliest days of Islam and are considered mandatory, unlike other crimes which are punishable at the discretion of a judge and may be dealt with through compensation or retribution. As a result, many people assume that all Islamic laws are fixed and unchanging. Indeed, the European Court of Human Rights ruling mentioned above characterizes shari‘ah as “stable and invariable.”

But shariʿah has a much broader meaning as well. It encompasses the core beliefs and practices of Islam, revealed in the Qur'ān and exemplified by the Prophet Muḥammad in the Sunnah, as well as the laws that are derived from those sources. While the core beliefs and practices remain stable, the laws derived from them change over time and display significant diversity. That is because most of the laws are derived from the Qur'ān and the Sunnah through interpretation. The Qur'ān does contain some specific legislation, including regulation of inheritance, for example. Most authorities believe that those regulations are not subject to interpretation. But the majority of the Qur'ān’s teachings are in the form of moral guidance and recommendations, which require human effort to be put into specific law codes. The human effort at understanding the legal implications of the Qur'ān and Sunnah is called fiqh (understanding).

The term fiqh is also used to refer to the laws devised by human effort. Unlike shari‘ah laws which are believed to be of divine origin and thus perfect and unchanging, fiqh laws are human products and therefore recognized as imperfect and subject to revision. Indeed, the body of Islamic law has been developing for over fourteen centuries and has adapted to diverse conditions and changing circumstances and five major schools of Islamic legal reasoning have developed. As in any other legal system, interpretations have diverged, some laws have become obsolete, and others have emerged. One of the official “roots” of fiqh is intellectual effort (ijtihād), whose purpose is to allow for reinterpretation of the laws when circumstances warrant it.

The body of Islamic law does undoubtedly contain elements that are startling in the light of contemporary Western norms. And today, there is lively debate among Muslim scholars over many of the laws that most concern non-Muslim observers, particularly those dealing with democracy, pluralism, the rights of women and of minorities, and the status of the traditional ḥudūd punishments.

Many contemporary Islamic thinkers fully endorse pluralism, including full equality for all citizens. Egypt’s Fahmiy Huwaydiy, for example, argues for equal rights for non-Muslim minorities based on the overall goal of Islamic law, which is to establish justice. In order to achieve justice in today’s world, he says, democracy is essential. Democracy has been shown to be successful in the West, and it is the most effective way to implement the Qur'ān’s command to govern through consultation (shūrā). While shūrā has been exercised in various ways throughout history, in order to result in justice today it must be anchored in a government that recognizes the right of people to choose their ruler, and this right must be shared equally by all citizens. Egyptian legal scholar Salim al-Awa (Salim al-Awwā) also argues in favor of democracy, saying that Islam places authority with the people, and all citizens have equal rights to choose, women and non-Muslims included.

Exiled Tunisian thinker Rachid Ghannouchi (Rāshid Ghannūshiy) argues for Muslim participation in secular democracies, again based on the Qur'ānic principle of participatory governance, shūrā, which he defines as the authority of the community. Muslims must work with whoever is willing to help achieve essential Islamic goals such as “independence, development, social solidarity, civil liberties, human rights, political pluralism, independence of the judiciary, freedom of the press, or liberty for mosques and Islamic activities.”

Leading European Muslim scholar Tariq Ramadan concludes that any government conforming to Islamic principles must allow for communal consultation, including both men and women, and that the most efficient means of doing that today is through a consultative council made up of elected members. He also insists that any representatives be chosen on the basis of competence in various areas pertinent to daily life, rather than heredity or some other unearned criterion. This competence allows them to exercise ijtihād, that is, to deliberate and formulate ways to achieve Islamic principles in today’s circumstances, instead of relying on models appropriate to circumstances that no longer exist. Consequently, Ramadan concludes, Islam is completely opposed to theocracy. Not only must Islamic government be conducted through consultation, it also requires freedom of conscience. This is based on Ramadan’s reading of the Qur'ān’s prohibition of compulsion in matters of religion (2:256). Thus, he says, people must have the right to choose their leaders, express their opinions, and live—male and female, Muslims and non-Muslim—under equal protection of the law, as was the case in the Prophet’s time under the Constitution of Medina. He argues that, although there is no unique model of Islamic government, basic principles have been provided which Ramadan calls “a framework to run pluralism.”

In a similar vein, Ramadan recommends a moratorium on the implementation of ḥudūd punishments. Other scholars agree, focusing specifically on the prohibition of apostasy (renouncing one’s religion). For example, the former chief justice of Pakistan, Dr. S. A. Rahman, argues that the prohibition of apostasy under threat of capital punishment violates the Qur'ān’s fundamental insistence on freedom of conscience. Egypt’s highest religious authority, Grand Mufti Ali Gomaah (Alī Jum’ah), also rejects the death sentence for apostasy, arguing that if punishment is due, it will come in the afterlife. There is even debate about whether or not some of the ḥudūd punishments have been properly understood and interpreted in the first place. Tunisian historian Mohamed Talbi explains that the law requiring capital punishment for apostasy resulted from a confusion of apostasy with treason. Leading American Muslim scholar Professor Ali A. Mazrui takes a slightly different approach. He argues for rethinking the ḥudūd punishments, saying that the punishments laid down fourteen centuries ago “had to be truly severe enough to be a deterrent” in their day, but “since then God has taught us more about crime, its causes,the methods of its investigation, the limits of guilt, and the much wider range of possible punishments.”

There is wide ranging opinion regarding precisely which laws should be subjected to ijtihād. It is common for conservative scholars to identify the laws they believe should be preserved as shariʿah and therefore not subject to ijtihād. Reformist thinkers tend to place greater emphasis on the distinction between shari‘ah and fiqh. This discussion has been a feature of Islamic discourse throughout history.

Renowned jurisconsult Ibn Taymiyah (d. 1328) criticized those who fail to distinguish between the technical usage of shari‘ah as the ideal, revealed will of God, and its generic usage to refer to specific legal codes, and cautioned against confusing the decisions of ignorant or unjust judges with shari‘ah. Shari‘ah texts even provide a measure by which laws can be judged as just or not: the “purposes” or “goals” (maqāṣid) of shari‘ah. Those goals include the preservation of human rights, defined as the right to life, religion, family, property, and reason. If those rights are not being served, the laws must be rethought.

It is true that Muslims stress the eternity and universality of shari‘ah, but that does not imply that all Islamic laws are unchangeable or that everyone must be ruled by Islamic law. It means that the values and goals of shari’ah are meant to cover all aspects of life. Some scholars even claim that any laws that fulfill the goals of shariʿah are Islamic in nature, if not in name. It is also true that there are Muslims who believe that the world would be better off if it were guided by shari‘ah. Except for an outspoken few, however, this position is a spiritual, not political, one.

Bibliography

1. Al-Awwa, Muhammad Salim. “Political Pluralism from an Islamic Perspective.” In Islam in Transition: Muslim Perspectives, edited by John J. Donohue and John L. Esposito, eds., pp. 279–287. New York and Oxford: Oxford University Press, 2007.
2. Ghannouchi, Rachid. “Participation in Non-Islamic Governments.” In Liberal Islam: A Sourcebook, edited by Charles Kurzman, pp. 89–95. New York and Oxford: Oxford University Press, 1998.
3. Huwaydī, Fahmī. Muwāṭinūn la Dhimīyūn (Citizens, Not Protected People). Beirut: Dar al-Shuruq, 1985.
4. Rahman, Fazlur. Islam. 2d ed. Chicago: University of Chicago Press, 1979.
5. Ramadan, Tariq. Western Muslims and the Future of Islam. Oxford and New York: Oxford University Press, 2005.
6. Talbi, Mohamed. “Religious Liberty.” In Liberal Islam: A Sourcebook, edited by Charles Kurzman, pp. 161–168. New York and Oxford: Oxford University Press, 1998.