Shari’ah is Not the Law

Before I became Muslim I read this book titled, Islam the Misunderstood Religion. That was almost four decades ago and this matter seems only to have gotten worse. For one thing, there is a lot of brouhaha about Islamic shari’ah. In both contexts of Muslim majority nation-states and minority in Europe and North America, concerns over shari’ah raise high emotions.

I won’t try to unravel all the threads of these debates, some of which are quite tangled, but I would like to try to make some sense of the basics. This is not like trying to teach it to students where problematizing is part of the lesson. This is really just to get ducks in a row, so to speak.

I’ll start with history. When the Prophet Muhammad died, there was nothing known as shari’ah and no one saying that it must be established or we do not have Islam. It is true, however, that there were the two divine sources: the Qur’an and his sunnah or his established practices. Both of these emphasized the importance of faith and right actions as a kind of partnership paradigm.

It’s not just enough to have the right ideas (or orthodoxy) but one must also do the right things (ortho-praxis) The Prophet himself was a man of impeccable behavior, and even warranted the status of infallible. That was with reference to his role as divine mediator. As a man, he himself expressed the possibility that he would not know certain things, or that he could make a mistake. In faith matters that was a different thing. He had to speak what he knew from experience of revelation. He also had to embody that with his own practices. So he was a walking, talking Qur’an, so to speak.

As for the Qur’an, out of over 6000 verses fewer than 100 actually tell us how to do things in a practical sense. I mean, like that tayammum I described when talking about ablutions — that comes from the Qur’an. You could add another 200 verses that sorta, kinda, talk about actions but are so general, or non-specific it takes a lot to figure out what was actually the right action. For example, the Qur’an says repeatedly “establish salah (or worship)” but does not say how to perform it or when to perform it. We get these details from somewhere else, usually, from the Prophet’s behavior.

After the Prophet dies, there was a really strong preoccupation with how to do what we are supposed to do in order to follow the guidance of the Qur’an and of his example. This preoccupation led to a flurry of legal thinking, legal thinkers, legal rulings and legal rationales. No one involved in this flurry said they were doing shari’ah. The definition of shari’ah did evolve at this time.

From its root form, shari’ah means: a path that leads to water (the source of all life). This is really a lot like the Tao, or like Zen. It is the way, but not in a road-map-with-specific-details kind of way. It is not a long list of dos and don’ts. It is an idea that there is harmony in all of creation, including human creatures, our communities, and our relationships with each other, with the rest of creation, and with the Creator. It is also about doing that which will maintain that harmony. It is an ideal. The grounds for this idea are divine. In this respect and in this respect only, can we say shari’ah is divine.

These days people use the word shari’ah to mean Islamic law. The problem with that is it collapses the historical and intellectual process to what some one, in fact, many some ones at some place and time, tried to do in order to “understand” this divine order. That process is known as fiqh or jurisprudence. Fiqh is the human attempt to understand the divine order or shari’ah. It refers to the legal mechanisms developed and explained to get rules out of those divine sources. This is where positive law was developed. This is what each of the established schools (or madh-hab) of law were focused upon.

My friend Dr. Ziba Mir-Husseini recently spoke at the IV World Congress on Islamic Feminism, and said “We all think we know what shari‘ah is, yet its meanings are widely contested. In the Western context, and for some Muslims, shari’ah has become synonymous with patriarchal laws and cruel punishments; with polygamy, stoning, amputation of limbs. Yet, for the mass of Muslims, shari’ah is the essence of justice, while for Islamists shari’ah is a powerful political ideology. In Muslim tradition, however, shari’ah is generally a theological and ethical concept more than a legal one; it is associated with the sacred, denoting the totality of God’s will as revealed to the Prophet Muhammad.

There are many players on the field today who have a vested interest in the debates over Islamic law, whether misunderstood to be one and the same as shari’ah or to be better understood as a process of law-making, legal rules and legislative methodologies — which is actually what fiqh is and what is practiced in varying degrees along with various interpretations in different aspects of Muslim civil society.

Ibn Jawziyyah, a medieval jurist said, “the goal of shari’ah (the maqasid) is justice.” When justice does not result it is not shari’ah. An examination of some of the patriarchal privilege of fiqh and its near total development without the voices of women and without first hand inclusion of women’s experience as a source for understanding will clarify why this distinction is really important. As long as we have our divine sources, the Qur’an and a record of sunnah, then we are still able as human beings to invest in this process of interpreting them for achieving justice.

As to the question of implementation of shari’ah in Muslim minority situations, let me summarize like this: shari’ah covers both ritual performances, ibadah, and social contracts, mu’amalat. It is both an ethical set of norms as well as an explicit set of practices. In this way, it is already in use whereever there are Muslims trying to live according to the divine design as they understand it. What is really at the heart of the debates is whether or not we can implement fiqh, and in particular one madh-hab or school of law. There is a problem. Whose interpretation of the divine order? And how does one establish their claim of authority?

In countries where courts are established even upon centuries of fiqh these same questions prevail. In minority situations, Muslims are already a part of a larger legal system, and a case must be made for the implementation of specific laws. That’s a good thing. It keeps the human part intact and does not allow any one human to pretend he or she alone has the authority to say what God wants us to do and then force that interpretation upon us.

As Dr. Mir-Husseini said,

“What we ‘know’ of ‘shari’ah’ is only an interpretation, an understanding; while fiqh—like any other system of jurisprudence and law—is human and mundane and temporal and local. Anyone who claims that a specific law or legal rule ‘is’ shari’ah, is claiming divine authority for something that is in fact a human interpretation. I believe it is crucial to keep this distinction, to separate the sacred from the legal in the body of law that is commonly subsumed under the label of shari’ah or Islamic law.

 

Without this distinction, reinterpretation and legal change become difficult or impossible.”

 

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