The following is an introduction to the concept (and conceptions) of Sharī‘ah in the Islamic tradition. No doubt some of what follows is eminently arguable but I think it no less true for all that!
Sharī‘ah: literally, something like “the way,” or “the path to the watering hole (or spring),” refers to divine law or God’s will in Islam. “The word occurs only once in the Qur’ān and it is used in contradistinction with hawā (whimsical desire):” [To Muhammad] “Then we set you upon a pathway of faith” (or ‘Thus we put you on the right way of religion’) (45:18).* Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one’s life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law as positive law in Islamic polities. It is a serious (religious, epistemological, ontological, ethical…) yet common mistake to conflate Sharī‘ah and fiqh, or to use these terms as synonyms, particularly when we appreciate the metaphysical or theological nuances of the former concept apart from its positivization through the rituals and laws of the Islamic world throughout history. The Sharī‘ah, writes Khaled Abou El Fadl, “is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh is the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.” This distinction is important if only because “the tendency to overlegalize Islam is common across the board in the writings of both Muslims and Orientalists” (Mohammad Hashim Kamali). Put differently, Sharī’ah is directly conveyed by means of revelation, while fiqh is primarily in reference to the Islamic corpus juris, the latter largely a subset of the former (it is not, strictly speaking, wholly a subset of the former insofar as forms of law that pre-date Islam or were concurrent with Islamic civilization found their way into the legal reasoning and fiqh of the legal schools).
The metaphysical and theological function of Sharī’ah is here analogous to that of Natural Law intimations and formulations among the Stoics and later religious and secular Natural Law doctrine as it developed from Grotius. Recently, Abdullahi An-Na‘im has made the provocative argument that “precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.” While perhaps formulated too much in “Protestant” terms insofar as it appears not to set constraints on the range of “legal” interpretation, it enables us to appreciate the fact that any legal system or positivization is liable to a principled (and thus reasoned) and “transcendental” critique insofar as human law(s) never fully embodies or instantiates justice, goodness, or God’s will. Moreover, such “objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a as it is understood at that time and that place by any particular individual.”
On this understanding, the function of Sharī‘ah is not unlike a Platonic Form, at least in its “bedrock version” as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993) or as discussed in the philosophical writings of Iris Murdoch (especially in The Sovereignty of Good (1970) and Metaphysics as a Guide to Morals (1992); keeping in mind that Murdoch takes the trouble to distinguish Plato’s conception of the Good from the theist’s God):
“The Good is distant and apart, and yet it is a source of energy, it is an active principle of truthful cognition and moral understanding in the soul, the inspiration and love-object of Eros. It is not a logical universal, or a Person, it is sui generis. It is a ‘reality principle’ whereby we find our way about the world.”
Intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are fairly indeterminate, while nonetheless serving as normative, intuitive, and largely nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional, hence legal) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing principled models of determinate social orders, none of which fully realizes Justice or the Good or God’s will, and all of which endeavor to approach Justice (or the Good or God’s will), succeeding by degrees (analogous if not related to the manner in which virtue ethics views our capacity for self-understanding in conjunction with perfectibilist psychological and moral growth).** In addition, writes Murdoch (again, assuming Sharī‘ah is here analogous in function to the Platonic Good),
“Our pilgrimage (in the direction of reality, good) is not experienced only in high, broad or general ways (such as in increased understanding of mathematics or justice), it is experienced in all our most minute relations with our surrounding world [what the Muslim reminds us is created by God and placed in our trust] wherein our apprehensions (perceptions) of the minutest things (spoons, stones, leaves, scraps of rubbish, tiny gestures, etc., etc.) are also capable of being deeper, more benevolent, more just (etc., etc.).”
What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: “The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.” Sharī‘ah is like the Platonic Form in being universal, abstract, and indeterminate, and thus cannot directly serve as a normative standard (i.e., any interpretation of the Divine Will needs religiously rationalized and principled justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, “in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.” Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts.
As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary (within the constraints of Islamic hermeneutics) according to the individual (for every Muslim is in possession of moral autonomy and is ontologically unique): “Indeterminacy and relativity are inseparable in the domain of realization.” The divine nature of Sharī‘ah means that it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such, or positive law, cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its specific principled and propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which both animates and transcends positive law. Discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of filling out intuitive or nonpropositional insight into divine law and represent our current understanding and embodiments of divine law in legalistic jurisprudential terms. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic and metaphysical terms, a dialectic between propositional knowledge and “knowledge by acquaintance” in a Platonic sense, or “knowledge by presence” after Shihāb al-Dīn Suhrawardī: “The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.” Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) as well as conscientious Muslims can examine and rationally refute propositions that claim to fully or finally capture the nature or essence of the Divine Will, that pretend to fully embody or “positivize” the Sharī‘ah. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply and solely the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense.
And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the Good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the Divine Will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in the interlocutors of the dialectical dialogues). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of ‘the Good,’ the Divine Will or Sharī‘a. Recall too that with regard to the positivization Sharī‘a there is a distinction between religious, moral, and juridical obligations.
Consider now the following critical comments from Professor Haider Ala Hamoudi, an avowed “legal realist,” from his blog, Islamic Law in Our Times: A Realistic Assessment of Islamic Law in Today’s World (http://muslimlawprof.org/), as it helps us see the difference between concern with the conceptual, metaphysical and theological, and focus on the empirical or positive, as well as how, in practice, the normative may be embodied or entangled in, or even conflated with the descriptive:
“In Islamic studies departments, there’s this notion of shari‘a as this sort of idealized, highly stylized logic driven system that is sort of somewhere in the sky that nobody can see, and then there’s fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there’s actual law, which bears no necessary relationship to either. [….] Certainly shari‘a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you’re lucky they’ll attempt to relate all of that to reality in a way that is, ummm, perplexing. [….] [A]s with any law or rule of social order, when you want to understand what the shari‘a is, you have to see what the shari‘a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law.”
This is reminiscent of a Holmesian-like attitude toward natural law or the positivist preoccupation of Legal Realism. I think Hamoudi is mistaken, however, in claiming that this idealized and stylized system conceives of Sharī‘ah and fiqh as bereft of any “necessary relation” to actual legal processes and systems. What frequently occurs here is something akin if not identical to the conceptual analyses one finds in analytical jurisprudence (of the sort wrongly lamented by Brian Leiter in his quest to ‘naturalize’ jurisprudence), which makes it essential to a normative understanding of positivistic models or descriptions of Islamic law in “actually existing Islamic societies.”
We should carefully consider the following point made by Abdullahi An-Na‘im:
“When observed voluntarily, Sharī‘ah plays a fundamental role in shaping and developing ethical norms and values that can be reflected in general legislation and public policy through the democratic political process.”
But I’m not sure it’s therefore true that “…Sharī‘a principles cannot be enacted and enforced by the state as public law and public policy solely on the grounds that they are believed to be part of Sharī‘a. If such enactment is attempted, the outcome will necessarily be the political will of the state and not the religious law of Islam. The fact that ruling elites sometimes make such claims to legitimize their control of the state in the name of Islam does not mean that such claims are true. The fact that the state is not a religious institution is the historical experience and current political reality of Islamic societies. [….] [D]ispelling the dangerous illusion of an Islamic state that can enforce Sharī‘a is necessary for legitimizing and implementing the principles and institutions of constitutionalism, human rights, and citizenship in Islamic societies.” Abdullahi An-Na‘im, Islam and the Secular State: Negotiating the Future of Sharī‘a (2008).
An-Na‘im is thinking largely here of the historical experience of non-democratic “Islamic” regimes invoking Sharī‘ah by way of political legitimation. But it may be that in majority Muslim countries today Sharī‘ah may function (or in theory, could function) in constitutions by way of legitimating democratic principles, methods, and processes, as well as human rights generally (an argument made by Noah Feldman). For instance, Sharī‘ah is said to have as an overarching aim protection of five fundamental “interests:” life, faith, property, intellect and family (cf. the list of basic or fundamental goods found in the Natural Law tradition from Aquinas to Finnis, Grisez and Murphy). In such cases Sharī‘ah principles would be at a level of abstraction and generality that assures the democratic polity is not in violation of basic Islamic values and reinforce the notion that there is nothing inherently undemocratic about Islam qua Islam, that Muslims can be—with good conscience and conscientiously—at once Muslims and democrats.
I don’t think there need be any inherent conflict—let alone contradiction—between Sharī‘ah and democratic theory and praxis, provided we adhere to the aforementioned distinctions. While this may be true, we should not ignore the historical (and perhaps not surprising) fact that, in the words of Mohammad Hashim Kamali, “with reference to justice and basic rights…the traditional fiqh in the areas of al-ahkām al-sultāniyyah (principles of government) and siyāsah shar‘iyyah (Sharī‘ah) has fallen short of reflecting the Qur’ān’s comprehensive conception of justice in the sphere particularly of rights and liberties.”
*Please see Mohammad Hashim Kamali's Shari‘a Law: An Introduction (2008).
**For elaboration, please see Francisco J. Gonzalez, Dialectic and Dialogue: Plato's Practice of Philosophical Inquiry (1998).
For further reading, see the titles under Jurisprudence in this bibliography for Islamic Studies.