Is Shari'ah, 'Fiqh'?
Is Shari'ah, 'Fiqh'?
Today, ‘Shari’ah’ is largely associated with fiqh, and thus ‘Shari’ah Law’ is widely understood by Muslims as encompassing a comprehensive system of immutable laws which regulate the conduct of Muslim men and women in all spheres of life. As Esposito has summarised:
“Law is the primary religious science in Islam. Once committed to Islam, the believer’s overriding concern and question is ‘What do I do; what is God’s will/law?’ Law is essentially religious, the concrete expression of God’s guidance (Shariah, path or law) for humanity. Throughout history, Islamic law has remained central to Muslim identity and practice, for it constitutes the ideal social blueprint for the ‘good society.’ The Shariah has been a source of law and moral guidance, the basis for both law and ethics. Despite vast cultural differences, Islamic law has provided an underlying sense of identity, a common code of behavior, for Muslim societies. As a result, the role of Islamic law in Muslim society has been and continues to be central issue for the community of believers. For the early Muslim community, following the Shariah of God meant obedience to God’s continuing revelation and to His Prophet. Issues of worship, family relations, criminal justice, and warfare could be referred to Muhammad for guidance and adjudication. Both Quranic teaching and Prophetic example guided and governed the early Islamic state. With the death of Muhammad, divine revelation ceased; however, the Muslim vocation to follow God’s will did not. Knowledge and enforcement of God’s law were continuing concerns.” (John Esposito, Islam: The Straight Path, Oxford University Press, 2005, pp. 74-75)
Of course, the Qur’an was not revealed in the form of an exhaustive, codified manual of law. Consequently, a great deal of Muslim scholarship has focused overwhelmingly on the task of attempting to infer the detailed application of specific rulings from the more general injunctions and exhortations contained in the Qur’an, and exemplified in the Prophet’s conduct. In Esposito’s words:
“The literal meaning of Sharia is ‘the road to the watering hole,’ the clear, right, or straight path to be followed. In Islam, it came to mean the divinely mandated path, the straight path of Islam, that Muslims were to follow, God’s will or law. However, because the Quran does not provide an exhaustive body of laws, the desire to discover and delineate Islamic law in a comprehensive and consistent fashion led to the development of the science of law, or jurisprudence (fiqh). Fiqh, ‘understanding,’ is that science or discipline that sought to ascertain, interpret, and apply God’s will or guidance (Sharia) as found in the Quran to all aspects of life." (Esposito, p. 78)
To be sure, while we should not devalue fiqh, nor dismiss the relevance of 'law' – legitimate questions may be asked about the extent to which the codification of law has become hegemonically and detrimentally central to Islamic scholarship today.
The first fact that must be noted, and remembered, is that fiqh is clearly an unequivocally fallible, human endeavour to interpret the Qur’an in order to deduce laws. Despite this, it is common in popular Muslim discourse to portray the resultant body of ‘Shari’ah Law’ as firmly representative of the Divine Will, universally applicable to the entirety of humanity, and that the primary function of any human governing body is to execute this Will by enforcing ‘Shari’ah Law’.
Is Shari'ah About Rules, Laws?
On one end of the spectrum of Muslim thought we have Kurshid Ahmad, a leader of Jama’at-e-Islami in Pakistan, arguing that:
“ ... Shariah is just another name of Islam and a pattern of thought and action given by Islam, ... It should also be clear that there are no versions of Islam. It is a deen revealed by Allah and a way shown to us by the Prophet (peace be upon him). It is complete code of life and presents solutions to all matters and the problems of life. ... Islam provides clear and unambiguous guidance for life.” (Khurshid Ahmad. 'Implementation of Shariah,' translated from Urdu original in Tarjumanul Qur’an Isharat, October 1998; Ahmad was a prominent leader and intellectual of Jamaat-e-Islami Pakistan)
From another end of the spectrum, Sheikh Yusuf Qaradawi says that “when mankind had reached the stage of intellectual maturity and was ready to receive the last message from Allah Subhanahu wa Ta’ala, Islam came with its complete, comprehensive, and eternal Shariah (law) for the whole of mankind." (Qaradawi, The Lawful and the Prohibited in Islam)
And despite a difference in epistemological and methodological approaches, this sort of perspective is often endorsed within mainstream Shi’ite scholarship, as exemplified by Hamid Mavani in his introduction to the translation of Ayatullah Seestani’s treatise on contemporary rulings: "The Qur’an and the corpus of hadith literature constitute a comprehensive legal resource that is invoked to regulate the various aspects of a Muslim believer’s life." (Hamid Mavani, 'Translator’s Preface', in Ayatullah al-‘Uzma al-Sayyid ‘Ali al-Husayni al-Seestani, Contemporary Legal Rulings in Shi’i Law, London: Organization for the Advancement of Islamic Knowledge, 1996)
These approaches seem to define the very essence of Islam as a ready-made manual of law regulating every conceivable detail of humankind’s social, cultural and political life - in this context, such approaches converge on a very particular conception of the purpose of Islam as establishing an ‘Islamic State’ (khilafah).
Yet the internal tensions in this viewpoint are clear from Maulana Mawdudi's explanation, where he sees the central objectives of an Islamic State as “deterring the aggression and preserving the freedom of people and defending the state”, along with “banning all forbidden things which have been condemned by the Qur’an.” He thus emphasises that its “sphere of activity is co-extensive with human life... In such a state no one can regard any field of his affairs as personal and private.”
In a particularly disturbing and contradictory paragraph, Mawdudi elaborates but ends up unable to reconcile his recognition that Islam supports individual freedom and is against dictatorship, with his view of the Islamic State as an executor of 'Islamic Law':
“Obviously, it is impossible for such a state to limit its framework, because it is a totalitarian state encompassing the whole human life, and painting every aspect of human life with its moral color and particular reformist programs. So nobody has the right to stand up against the state and exempt himself from the liability by saying that this is a personal matter, so that the state does not intrude. In brief, the state encompasses the human life and every area of civilization according to its particular moral theory and particular reformist program. So, to some extent, it is similar to the communist and fascist state. But despite this totality the Islamic state is free from the color that dominates the totalitarian and authoritarian states of our age. Thus the Islamic state does not curtail the individual freedom nor has it much room for dictatorship or absolute authority." (Charles J. Adams, 'Mawdudi and the Islamic State,' in John L. Esposito, ed., Voices of Resurgent Islam, New York: Oxford University Press, 1983, pp. 119-21, 154; Abu al-Ala al-Mawdudi, Towards Understanding Islam, Cedar Rapids, Iowa: Unity Publishing, 1980)
Here, the avowal that an Islamic State protects “individual freedom” is unconvincing, as it contradicts Mawdudi's projection of the state as an all-encompassing “totalitarian” institution akin to communism and fascism. It is also clear that this top-down conception of an Islamic State is embedded in the prior assumption that Islam is synonymous with a form of ‘Shari’ah Law’ designed to regulate all human behavior through a comprehensive body of legal rulings. Yet even while this direction of thought is partly supported by the classical tradition of Muslim scholarship on which it draws, the contemporary equation of all Islamic legal rulings with Divine Will (and in fact the very elevation of Islamic law itself as a central determinant of what Islam is in its essence) is a peculiarly modern phenomenon.
Historicity and Contingency of Shari'ah 'Laws'
As Prof. Bernard Weiss, one of the foremost Western scholars on Islamic law, points out:
“The medieval Muslims were in fact much more concerned with the explication of the concept of a divine categorization of an act than with the explication of the concept of the Sharia as such. Indeed, in many of their most renowned writings one does not find any discussion at all of the latter concept, whereas discussions of the former typically take up many pages. Frequently, rather than speaking simply of the Sharia, Muslim scholars would speak of ‘Sharia categorizations’ (al-ahkam al-shar’iya)." (Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi, Salt Lake City, Utah: University of Utah Press, 1992, pp. 1-2)
Today, the term 'al-ahkam al-shar'iya' is rarely heard in popular Muslim debates about 'Shar'iah.' Yet this very precise definition adopted by the classical Islamic scholars undermines the totalising conception of Shari'ah adopted by modern writers like Mawdudi. On the contrary, whereas Shari'ah was seen as representing the Divine Path or Will for humankind, the specific 'categorisation' in the form of particular laws and regulations were seen not as universal laws that would be universally relevant for all times and places, but were local and contingent 'categorisations' of the Divine Will for particular local circumstances of the time. It is for this very reason that most classical scholars recognised the need for flexibility in the development and application of Shari'ah.
Thus, the modern lay-Muslim view of ‘Shari’ah’ as a singular, fixed body of codified law manifesting the Divine Will in a manner universally and eternally applicable for all humankind, is a major departure from even the classical Islamic tradition.
It is, also, worth noting that classical Islamic scholarship and associated efforts to codify Islamic laws, represented a novel development that was never carried out by the Prophet himself, nor encouraged by him in his lifetime. Thus, the evolution of ‘Shari’ah Law’ associated with the classical tradition also represented a major departure from the Prophetic model, under which no such codification was pursued during the Prophet's lifetime. This is not to suggest that such codification was therefore wrong or incorrect – simply that it was a genuinely novel phenomenon.
Indeed, it was only long after the death of the Prophet that we began to see developments toward the written formalisation and codification of law, and eventually the proliferation of multiple legal schools. However, the discerning Muslim who is inclined to follow the genuine Prophetic model unfiltered through the prism of man-made interference and distortion, must remember that the codification of Islamic law occurred in the context of Muslim empire systems which were fundamentally distinct from the Prophetic model. In other words, the vast corpus of legal opinions identified as ‘Shari’ah Law’ developed in specific social, cultural and political contexts, with juristic interpretations often being inseparable from the specific historical circumstances and problems facing these Muslim rulerships. That doesn't mean that those laws are simply invalid - but that, at the very least, much of them were specifically relevant to historical challenges and issues of the day; and at worst, could have been subject to cultural and political distortion.
Any serious effort to engage with Islamic and Muslim history must therefore be conscious of being able to separate legitimate Islamic ideas and values which can be attributed reliably to the Prophet, from the unwarranted distortions of political and cultural pressures of the time.
Non-Muslims, Jihad and Gender
Prof Louay M. Safi, Common Word Fellow at the Prince Alwaleed bin Talal Center for Muslim-Christian Understanding, Georgetown University in Washington DC, has provided two salient examples of how, even within the classical tradition, the unmistakable trace of historical political and geopolitical pressures can be clearly seen in the chronological evolution of what became known as ‘Shari’ah Law’.
In relation to the rights of non-Muslims (dhimmis) within the Islamic polity, he points out that “while early shari’a law recognized the civil and political rights and liberties of non-Muslim dhimmis, shari’a rules underwent drastic revision, beginning with the eighth century of Islam.” The context of this revision was “political turmoil throughout the Muslim world.” Safi highlights the role of the Mongol invasion of Central and West Asia, “inflicting tremendous losses on various dynasties and kingdoms, and destroying the seat of the caliphate in Baghdad” – coinciding with the “crusaders’ control of Palestine and the coast of Syria.” Simultaneously, Muslim power in Spain was being weakened. “It was under such conditions of mistrust and suspicion that a set of provisions attributed to an agreement between the Caliph Omar and the Syrian Christians were publicized in a treatise written by Ibn al-Qayyim. The origin of these provisions is dubious, but their intent is clear: to humiliate Christian dhimmis and to set them apart in dress code and appearance.” However, the replacement of the Abbasid empire with the Ottomans allowed a resumption of “the early practice of granting legal and administrative autonomy to non-Muslim subjects.” (Louay M. Safi, 'Human Rights and Islamic Legal Reform' Human Rights Forum, Spring 2001, Vol. 18, No. 2, pp. 32-59)
Safi's historical analysis of the very real changes in Islamic laws on the treatment of 'dhimmis' within the territory of respective Muslim empires is grounded in rigorous mining of historical sources and Islamic literature. Prof. Safi demonstrates beyond doubt that 'Shari'ah laws' underwent evolution and transformation in the context of new political changes and challenges - and that, in the case of an alleged agreement described by Ibn al-Qayyim, the origins of new harsher rules is historically "dubious" and not justifiable as authentic.
Similarly, Prof. Safi points to classical doctrines of jihad, which were developed in the context of inter-imperialist geopolitical competition between the prevailing Muslim empires of the time, and other rival Western imperial powers. Safi’s point is not to dismiss the validity of these doctrines within their historical context, which is an open but separate question.
Rather, he highlights that the rulings were specifically applicable to the context in which they arose and the problems of the time, and therefore cannot in principle be generalised as universal immutable laws remaining applicable for all times, places and peoples:
“... the classical doctrines of jihad... were predicated on a set of legal rulings (ahkam shar`iyyah) pertaining to specific questions which arose under particular historical circumstances, namely, the armed struggle between the Islamic state during the ‘Abbasid era, and the various European dynasties... [the] classical jurists did not intend to develop a holistic theory with universal claims... The doctrine of jihad was developed in the first three centuries of Islam, and was influenced by the political structure of the day.... [as well as] by the imperial politics of the Roman Byzantine empire... The classical doctrine of jihad, and its corollary theory of the Two Territories [i.e., the land of Islam, dar al-Islam, as distinct from non-Muslim lands, dar al-Harb], are the products of their time, and should be understood as such." (Safi, 'Peace and the Limits of War: transcending the classical conception of jihad,' Herndon, VA: International Institute of Islamic Thought, 2001)
These issues are also relevant in understanding how conventional views of 'Shari’ah Law' deal with gender relations and women’s issues. As Prof. Cheris Kramarae, director of women's studies at the University of Oregon and Dale Spender, co-originator of the Women's International Knowledge Encyclopedia and Data (WIKED) project, observe in the Routledge International Encyclopedia of Women:
“The formation and development of the shari’ah law took place over several centuries after the death of Muhammad… The period from the death of Muhammed (632 C.E.) to the year 750 C.E. saw the transformation of Islam from a small religious community in Arabia to a vast military empire… The difficulties of interpreting ethical ideas and rendering them into law were compounded by this rapid acquisition of vast foreign territories with diverse cultures… These societies were more unambiguously patriarchal, more misogynistic, and more restrictive of women than the tribal societies of Mecca and Medina of Muhammad’s time. The practices introduced by Muhammad within the first Muslim society were, in their own time and context, progressive; they were instituted in a context of attitudes far more positive toward women than those of the later Abbasid society… As Islamic society was transformed, many local laws were modified or transformed on the basis of Qur’anic rules, interpreted by judges and jurists of the time." (Cheris Kramarae and Dale Spender, eds., Routledge International Encylopedia of Women: Global Women’s Issues and Knowledge. Vol. 3, Identity politics to publishing, London: Routledge, 2000, entry on 'Islam', p. 1158)
The classical evolution of Islamic Law, therefore, often occurred in the diverse cultural contexts of local customs and norms prevalent in the territories conquered by expanding Muslim empires. On gender and women's issues, as the Routledge volume above notes, the Muslim societies that came after the Prophet's lifetime were in fact far more patriarchal than prior Arabian tribal societies, which were already quite patriarchal if not misogynistic.
As Muslim empires expanded and co-opted new foreign localities and customs, Muslim juristic opinions were increasingly re-interpreted to meet the new cultural demands. This allowed patriarchal practices that were discriminatory to women, but with little foundation in Prophetic practice, to become far more entrenched, and stamped with the ostensible appearance of juristic approval.
One obvious example of such patriarchal practices , for instance, is the exclusion of women from mosques or if women are permitted, the imposition of rigid gender segregation through the erection of a veil between men and women in the mosque. These are very common practices today despite never having been adopted by the Prophet himself. Their widespread adoption can be traced back to the cultural norms of Muslim dynasties centuries after the Prophet's demise.
The Tools of Fiqh: Limited, Artificial, Fallible
The bulk of the analytical and methodological categories deployed by the different Muslim legal schools, considered as sources of the derivation of law, were innovated centuries after the Prophet’s lifetime – and indeed were rightly recognised as separate to the Qur’an and hadith (Prophetic traditions) which they were designed to interpret.
While the value of these tools is widely recognised in the scholarly community, less attention has been paid to the fact that many (though not all) of these tools and definitions constitute new methodologies invented and institutionalised by scholars after the Prophet: they include ijma (consensus), qiyas (analogical reasoning), mantiq (logic); classifications of the permissibility, obligatory or recommended nature of behavior such as wajib (required), fard (obligatory), sunnah or mustahab (recommended); the concept of taqlid (imitation) to delineate the authority of the fuqaha (jurists); as well as classifications to assess acceptability of ahadith including mutawatir (unimpeachable from multiple chains), sahih (sound), hasan (good), daif (weak), and maudu (fabricated). Generally, these categories and tools are fallible, human constructs, and their application to the canonical textual sources, the Qur’an and hadith, is equally fallible.
This does not mean they are false, but rather that they are a fallible framework by which we have attempted to codify the principles articulated in Islamic sources into a legal and jurisprudential structure. But often this fallibility is forgotten, and the implications confirming the inherent limitations and fallibility of legal and jurisprudential rulings is overlooked by contemporary Muslims.
Indeed, it is important to emphasise that despite the way Shari’ah Law is commonly understood and communicated today in the Muslim world as a universal and eternal set of Divinely-ordained rules, many classical scholars openly acknowledged this inherent fallibility of Muslim jurisprudence, which was seen as distinct from the Divine Command. For example, Abu al-Husayn Ali otherwise known as al-Amidi and Mohammad bn Ali Al-Shawkani both defined ijtihad as the jurist’s exertion to infer rulings from the sources with a degree of probability. Ultimately, there could never be complete certainty over these rulings. (Al-Amidi, al-Ihkam fi Usul al-Ahkam, Vol. IV, p. 162; Shawkani, Irshad, p. 250)
This means that Islamic jurisprudence must be understood not as an immutable reflection of God's commands, but rather as a fallible human attempt to approach an understanding of how Divine Guidance should be applied.
Plurality and Flexibility: Inherent to Islamic Law
This, of course, accounts for the wide differentiation within and between the Muslim legal schools. While such categories and tools may well have been and remain useful, the fact that the derivation of Islamic Laws rests on their fallible application means that the complex, diverse body of often mutually inconsistent rulings associated with Islamic Law must not be simplistically equated with the Divine Will. On the contrary, it would seem that the existence of this very plurality and flexibility of rulings is itself an inherent quality of the open nature of the sources themselves, which do not always lend themselves to any single, fixed interpretation.
This means that there is no textual justification within the Qur'an or Prophetic tradition to remain stuck solely to these tools to interpret the Qur'an and verify authentic Prophetic traditions. On the contrary, based on the Qur'anic and Prophetic injunctions to continually seek and improve knowledge, Muslims should be at the forefront of improving these tools and methods, evaluating them, and applying to them constructive criticism with a view to enable closer and better engagement with the Qur'an and the Prophetic model, and therefore closer and better interpretations (ijtihad). There is nothing in the Qur'an or Prophetic tradition which suggests that this door to improvement should be closed.