Sharī‘ah: Toward a Philosophically & Realistically Sensitive Introduction

 

The following is the latest draft of my introductory essay on Sharī‘ah, revised yet again in the interest of precision and clarity.

Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper or 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. Fiqh involves the human process of understanding and implementing the divine law or revelation (wahy), and thus is at least one remove from the latter inasmuch as it is the corpus juris developed by the various legal schools, individual jurists and judges in the Islamic tradition. It is a serious (religious, epistemological, ontological, ethical…) yet common mistake to conflate Sharī‘ah and fiqh, or to use these terms interchangeably or as synonyms, particularly when we appreciate the metaphysical or theological nuances of the former concept apart from its positivization through the rituals and laws in 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.’ Thus Sharī‘ah is by definition always fair, just and equitable, whereas fiqh might be described as the all-too-human attempt at approaching, through positive law, 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’ (Abou El Fadl). The metaphysical and theological function of Sharī’ah is, in some respects at least, analogous to that of Natural Law theory and formulations among the Stoics and later religious and secular Natural Law doctrine as it developed from Aquinas, Grotius, and Pufendorf (we may in fact be dealing with more than an analogy here: cf. Anver M. Emon’s Islamic Natural Law Theories, 2010). As described by the legal theorist Mark Murphy, natural law in general is ‘the view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings. Further, it holds that (4) the good is prior to the right, that (5) right action is action that responds nondefectively to the good, that (6) there are a variety of ways in which action can be defective with respect to the good, and that (7) some of these ways can be captured and formulated as general rules.’

As several scholars have pointed out, there’s been a tendency among both Muslims and Orientalists in the modern and post-modern periods to ‘overlegalize’ Sharī‘ah, and thus Hashim Kamali rightly observes: ‘It is questionable whether Islam was meant to be as much of a law-based religion as it is often made out to be.’ With regard to Islamic spirituality, Sharī‘ah in the first instance is concerned with (1) faith in God (īmān), (2) the five pillars of praxis (al-arkān al-khamsah), and (3) the manner of worshipping God (‘ibādāt, or ‘devotional matters’). Sharī’ah is also said to be concerned with the protection and promotion of ‘five essentials’ (al-daruriyāt), namely, life, religion, property, intellect and family. These ‘five essentials’ are what in natural law theory is referred to as ‘basic goods,’ and different natural law theorists, from Aquinas in the Middle Ages to Mark Murphy and John Finnis (Catholic natural law philosophers) today, likewise have lists of ‘basic goods’ natural law is designed to protect and promote. For example, the goods Aquinas mentions are ‘life, procreation, social life, knowledge, and rational conduct,’ and Finnis cites ‘life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion.’ It’s clear there’s some overlap here with the basic values and goods found in the Islamic tradition.

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 to ignore theological and long-standing exegetical and hermeneutic constraints on the range of ‘legal’ interpretations, and while virtually if not wholly eliminating a necessary role for Islamic religious authority(ies), it enables us to appreciate the fact that any legal system or positivization of Islamic law 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.). Both Platonic Forms and the Sharī‘ah are fairly indeterminate and utopian, while nonetheless serving as normative, intuitive, and largely nonpropositional foundations (in theory at least, 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). Norman Calder has suggested 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, translated in spiritual, religious, legal and political terms. Such understanding is necessarily partial and fallible and, outside of prescribed religious obligations and modes of worship, may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means that it morally—or politically and legally speaking—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 or constitutional formulation 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 acquiring (intuitive or nonpropositional) insight into divine law and represent our current understanding and embodiments of divine law. 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 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‘ah.

   That said, consider the following comments from Professor Haider Ala Hamoudi, a self-described ‘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 acknowledgment of and concern for the distinction between the conceptual, metaphysical and theological, on the one hand, and focus on the ‘empirical’ (Hamoudi’s ‘realism’) on the other, and that the failure to maintain the distinction results in a troubling conflation of the ‘normative’ and 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.’

Well, yes…and no. It’s no doubt necessary and important to describe precisely how people in fact are interpreting and using Sharī‘ah in legal and political contexts. But we should carefully consider the following argument of An-Na‘im, which implicitly acknowledges the aforementioned conceptual and theoretical distinction between divine law and human law (and religiously inspired or motivated good governance and public policy), and thus there always exists the possibility of principled and arguable perception of a religious and moral gap between what is the case and what ought to be the case, a possible perception that is, in the end, the prerogative of all Muslims in their capacity as individuals:

‘When observed voluntarily, Sharī‘a 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…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.’ (An-Na‘im 2008)

What is at issue here is the nature of what has come to be called siyāsah shar‘iyyah, or the endeavor to develop the implications of Sharī‘ah with regard to the pursuit of justice and good government (or more broadly, governance), precisely the point at which the understanding of Sharī‘ah comes into contact with questions of democratic theory and praxis and basic human rights. On this topic, we’ll grant the last word to Mohammad Hashim Kamali as evidence for the proposition that there need not be any inherent conflict—let alone contradiction—between Sharī‘ah and democratic theory and praxis or human rights, even though, historically, this has not been the case. As Kamali explains, ‘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.’ And it is in light of this comprehensive conception that we can with some confidence claim there exists no necessary contradiction between Sharī‘ah and democratic theory and praxis, the very argument made by Noah Feldman, beginning with his book, After Jihad: America and the Struggle for Islamic Democracy (2004) and most recently in The Fall and Rise of the Islamic State (2008). The following is a summary of points made by Kamali on behalf of this claim:

1. Notwithstanding certain reservations, some Muslim commentators have noted the Islamic credentials of formal constitutions in present-day Muslim countries; these constitutions, on the whole, pay greater attention to basic rights and liberties, the foundations of accountable and representative government, and as such tend to be in greater harmony with the basic principles of Islam. [….]

2. In response to the question whether a formal constitution was Islamic, and whether any objectionable elements therein invalidated the whole of a constitution, Muhammad Rashīd Ridā (d. 1935) issued a fatwā that may be summarized as follows: If a constitution seeks to establish a good government, defines the limits of power and ascertains criteria of accountability, then it would be in harmony with Islam. Should there be an instance of disagreement with any of the principles of Islam, only that element should be addressed and amended. For after all many of the great works of fiqh also contain errors, but this does not invalidate the whole of the endeavor or manual in which such an error might have occurred. [….]

3. [Despite] a lack of consensus over the basic definition of “right” in the Islamic discourse, the word “haqq” is often said to convey a basic meaning regardless of definitions. Haqq (right) in the Qur’ān occurs in several places and carries a variety of meanings, which include justice, right as opposed to falsehood, a legal claim, an obligation, something that is proven and an assigned portion. The many meanings of haqq in the Qur’ān may be said to be a cause sometimes of ambiguity, even misunderstanding. For instance the shared meaning of haqq between a right and an obligation has persuaded Western Islamologists to draw…the unwarranted conclusion that Islam recognizes only obligations but no right inhering in the individual. This is tantamount to turning a blind eye to the affirmative stance of the Qur’ān and Sunnah on the rights of the individual, including his right to life, right to justice, right to equality, right of ownership, rights to sustenance and support within the family, parental rights, right of inheritance and so forth. Islam’s commitment to justice and its advocacy of human dignity could not be sustained without the recognition of rights. [….]  We may add…that Islam’s perspective on rights and liberties is somewhat different from that of constitutional law and democracy and their underlying Western postulates. Islam, like other great religions, is primarily concerned with human relations. In ordinary life, people do not live primarily in terms of rights against others but in terms mutual relationships involving love, compassion, self-preservation and self-sacrifice in pursuit of happiness and peace for themselves and their loved ones. The great religious traditions teach people, with good reason, that such things are not a matter of course nor are they always a question of rights. This would partially explain why most religions tend to emphasize moral virtue, obligation, love and sacrifice even more than the individual’s rights and claims. [….]

4. [T]here are differences between the theistic view of right and freedom when compared to what they mean in a secular context, but we also note that taking a totally secular approach to them is not advisable in the Islamic context. We believe that human rights and democratic values would benefit if religious values are also taken into consideration. [….] For the religious reformers to carry forward their struggle for democracy and human rights, they should be seen as authentic articulators of change espousing an alternative from within rather than without the tradition. [….]

5. For moderate Muslim thinkers, Islam’s exhortation to justice does not preclude people’s interpretation of it. On the subject of women’s rights, for example, it is suggested that women’s isolation from public life has been due to backward customary impositions on the Qur’ānic discourse. Thus what is needed is to restore women’s originally independent status in the Qur’ān, and provide a social context where women can exercise their freedom and independence. [….] Political parties and associations are permitted, and Islam stands for consultative and constitutional  government with limited powers subjected to the rule of law. Basic rights and freedoms must be protected and government is accountable to the people. (Kamali 2008b)

References & Further Reading:

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• Abou El Fadl, Khaled, et al. Islam and the Challenge of Democracy. Princeton, NJ: Princeton University Press (A Boston Review Book), 2004.
• Abrahamov, Binyamin, ed. Islamic Theology: Traditionalism and Rationalism. Edinburgh: Edinburgh University Press, 1998.
• Amanat, Abbas and Frank Griffel, eds. Shari’a: Islamic Law in the Contemporary Context. Stanford, CA: Stanford University Press, 2007.
• An-Na’im, Abdullahi Ahmed. Islam and the Secular State: Negotiating the Future of Shari‘ah. Cambridge, MA: Harvard University Press, 2008.
• Al-Azmeh, Aziz, ed. Islamic Law: Social and Historical Contexts. London: Routledge, 1988.
• Al-Azmeh, Aziz. Islams and Modernities. London: Verso, 2^nd ed., 1997.
• Baderin, Mashood A. International Human Rights and Islamic Law. New York: Oxford University Press, 2003.
• Black, Anthony. The History of Islamic Political Thought: From the Prophet to the Present. New York: Routledge, 2001.
• Brown, L. Carl. Religion and State: The Muslim Approach to Politics. New York: Columbia University Press, 2000.
• Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford, UK: Clarendon Press, 1993.
• Cook, Michael. Commanding Right and Forbidding Wrong in Islamic Thought. Cambridge, UK: Cambridge University Press, 2000.
• Coulson, Noel J. Conflicts and Tensions in Islamic Jurisprudence. Chicago, IL: University of  Chicago Press, 1969.
• Dupret, Baudouin, ed. Standing Trial: Law and the Person in the Modern Middle East. London: I.B. Tauris, 2004.
• Dupret, Baudouin, Barbara Drieskins and Annelies Moors, eds. Narratives of Truth in    Islamic Law. London: I.B. Tauris, 2008.
• Emon, Anver M. Islamic Natural Law Theories. New York: Oxford University Press, 2010.
• Enayat, Hamid. Modern Islamic Political Thought. Austin, TX: University of Texas Press, 1982.
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• Fakhry, Majid. Ethical Theories in Islam. Leiden: E.J. Brill, 1991.
• Feldman, Noah. After Jihad: America and the Struggle for Islamic Democracy. New York: Farrar, Straus, Giroux, 2003.
• Feldman, Noah. The Rise and Fall of the Islamic State. Princeton, NJ: Princeton University Press, 2008.
• Griffel, Frank. Al-Ghazālī’s Philosophical Theology. New York: Oxford University Press, 2009.
• Haj, Samira. Reconfiguring Islamic Tradition: Reform, Rationality and Modernity. Stanford, CA: Stanford University Press, 2009.
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• Hallaq, Wael B. An Introduction to Islamic Law. Cambridge, UK: Cambridge University Press, 2009.
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• Hashemi, Nader. Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies. New York: Oxford University Press, 2009.
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• Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. Cambridge, UK: The Islamic Texts Society, revised ed., 2000.
• Kamali, Mohammad Hashim. The Right to Life, Security, Privacy, and Ownership in Islam. Cambridge, UK: Islamic Texts Society, 2008a.
• Kamali, Mohammad Hashim. Shari’ah Law: An Introduction. Oxford, England: Oneworld, 2008b.
• Khadduri, Majid. The Islamic Conception of Justice. Baltimore, MD: Johns Hopkins University Press, 1984.
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• Kurzman, Charles, ed. Modernist Islam, 1840-1940: A Sourcebook. New York: Oxford University Press, 2002.
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• Leaman, Oliver, ed. The Qur’an: An Encyclopedia. New York: Routledge, 2005.
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• Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press, 3^rd ed., 1999. 
• McAuliffe, Jane Dammen, ed. The Encyclopedia of the Qur’an, 5 Vols. Leiden: E.J. Brill, 2001-2006.
• Murphy, Mark. “The Natural Law Tradition in Ethics,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.)             http://plato.stanford.edu/archives/fall2008/entries/natural-law-ethics/.
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• The Qur’an (Tarif Khalidi, trans.). New York: Viking/Penguin, 2008.
• Renard, John. Seven Doors to Islam: Spirituality and the Religious Life of Muslims. Berkeley, CA: University of California Press, 1996.
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• Rosen, Lawrence. The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford, UK: Oxford University Press, 2000.
• Sachedina, Abdulaziz. The Islamic Roots of Democratic Pluralism. Oxford, UK: Oxford University Press, 2001.
• Sachedina, Abdulaziz. The Role of Islam in the Public Square: Guidance or Governance?Amsterdam: Amsterdam University Press, 2006.
• as-Sadr, Muhammad Bāqir (Roy Mottahedeh, trans.). Lessons in Islamic Jurisprudence. Oxford, UK: Oneworld, 2003.
• al-Sadr, Muhammad Bāqir (Arif Husain, trans.). Principles of Islamic Jurisprudence According to Shi‘i Law. London: Islamic College for Advanced Studies Press, 2003.
• Saeed, Abdullah. Interpreting the Qur’ān: Towards a Contemporary Approach. New York: Routledge, 2005.
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• Souaiaia, Ahmed E. Contesting Justice: Women, Islam, Law, and Society. Albany, NY: State University of New York Press, 2008.
• van Ess, Josef (Jane Marie Todd, trans.). The Flowering of Muslim Theology. Cambridge, MA: Harvard University Press, 2006.
• Vikør, Knut S. Between God and the Sultan: A History of Islamic Law. New York: Oxford University Press, 2005.
• Weiss, Bernard G. The Spirit of Islamic Law. Athens, GA: University of Georgia Press, 1998.
• Zubaida, Sami. Law and Power in the Islamic World. London; I.B. Tauris, 2003.