While shari’a has become the subject of growing concern in Western societies over the past decades, crucial questions as to the conceptualisation of this notion have remained largely unexplored. Hosna Sheikhattar outlines the definition and remit of shari’a, its history and its contested status today.
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 will most probably be surprised to find out that Rumi praised shari’a, describing it as a candle that lights the way for those who want to begin their spiritual journey.
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 guide for spiritual journey?
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.’
Although today the word shari’a is exclusively associated with Islam, the earliest Arabic translations of the Torah and the Old Testament from the 10th century CE also referred to the shari’a of Moses and the shari’a of the Messiah, and the Quran itself makes clear that Muhammad was not the first prophet to whom shari’a was prescribed.
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. 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.
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:
Shari’a as an ideology or slogan:
According to Berger, regardless of being pro- or anti-shari’a, users of the term shari’a conceptualize it as an ideology and have little clue about its precise meaning. In both instances, the term is used in generalized statements which overlook or deny the diversity in interpretation of religious texts.
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 Islamic sources to infer rules. 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. Studying this legal literature in isolation from its socio-historical context results in an incomplete or even distorted image of the system.
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. In certain countries, this led to the implementation of the so-called shari’a as a system of state law in its modern sense.
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 Islamic sources.
The products of such reasoning are far from a homogenous body of rules. A 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 are open to re-interpretation in the light of 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 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 firsthand 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 11th 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, 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. 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’. 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. Indeed, literal adherence to the letter of the prophetic traditions is common among Islamic jurists giving rise to opinions that seem isolated from the underlying values of Islamic teachings. 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 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.
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 the 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.
Note: This is an edited version of an article that was originally published on the University of Leiden’s law blog.
Note: This piece gives the views of the author(s), and not the position of the LSE Religion and Global Society blog, nor of the London School of Economics.