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My Sharia Question

November 5, 2006
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I know that we have scholars and advocates out there who argue and have written that sharia can work within a democracy (Abu El Fadl and Mukhtader Khan).  Admittedly, I haven’t read any of the works and I do hope to do so one day.  My question is not how sharia could work within a democracy as we have allready seen religion work within democracy and democracy work to push religion out.  It’s been an ongoing struggle for generations.

My question is how sharia can work at all?  How could we as Muslims possibly make it work justly?  Just as here in the United States we have seen riots take place between different Christian sects over which prayer should be used in schools, how would we as Muslims decide which interpretation of Sharia we would use?

I think if we take a look at the ME, we will notice that the extremist views tend to win.  Let’s take a look at the Hudood Ordinance in Pakistan.  Originally, it is Islamic based, recently it was said that the ordinance is unislamic and needs to be changed (by an Islamic council).  Now, correct me if I am wrong but another rival faction wants this law to remain and any changes that would be made do not reflect the understanding of what the Islamic laws in regards to rape and zina are.

We have debate in regards to the veil.  We have debate in regards to women’s rights.  We have debate/disagreement in so many aspects.  We see that the sharia system is causing human rights atrocities in the Middle East, but how do we ensure that a just sharia would be applied when we have such varying opinions.

Discuss…

19 Comments leave one →
  1. saqi permalink
    November 5, 2006 6:03 pm

    In this case different schools of thoughts would have to agree on what the majority decides but it seems unlikely when everyone thinks that not only they are right but the ones who are wrong are heretical.

  2. dezhen permalink
    November 5, 2006 8:25 pm

    Interesting post! For me, I actually envisage the ME and elsewhere as seperate to the situation of us here in the West.

    For us, we are (to paraphrase Tariq Ramadan) in a “contract” with our country of reisdence, to obey their laws and contribute positively to the society. That puts us in a completely different boat to those who can (theoretically) create some type of “Islamic” legal structure, even if that only extends to personal/family law.

    One thing that I really think needs to be done here, is for Imams and other religious personnel to clearly understand that they cannot make any legal pronouncements here, unless it happens to coincide with what the State rules. They only have a moral authority, and people can choose to listen or go somewhere else. I don’t know about you, but this is one of my pet-peeves right now, especially after the Mufti incident here.

    As far as the Middle East and elsewhere, then this is why a “global Caliphate” could not work in reality. Those who articulate this idea need to either provide a possible solution for dealing with the (perhaps vast) differences of opinion, or they need to face reality.

    I agree with you that it seems the ‘extremist’ types tend to win out on these things, but then, there are reasons behind that too. Even here, for example, when we have people who don’t even know what a madhhab is, or that there are actual differences of opinion (that it is legitimate!), so what else can we expect? People look for anything that seems authoritative, and that which quotes the direct sources often appears that; especially when it is generally in a way that takes no brainpower to comprehend, so anyone can follow the ‘logic’. If you ask me, this is squarely the fault of the Muslims, and is also a Muslim issue to deal with. It will be a hard struggle, but I think it can be done.

    Just another rant.🙂

  3. November 5, 2006 10:58 pm

    My background is Christian and I keep seeing parallels between Islam and Christianity. Both riligions are sundered by differing sects. For centuries, the Christian way to deal with that was for one to oppress the other, often using execution as a deterrent to following the “other” sect. Gradually the power left the sects and moved towards secular political parties. Islam, some 600 years younger than Christianity, has not yet reached that stage. With modern communications, I don’t think it will take 600 years for Islam to catch up with Christianity. Still, another 200 years of conflict will not be fun. (thinks – hmmm – is there a case for calling Christianity a mature religion and Islam an adolescent religion? Where does this leave Judaism? doddery? senile? Grandfatherly? I may go away and think about that as well)

  4. November 5, 2006 11:17 pm

    The best of love and courtesy and regard for all humand beings is in all religions, and that should be the heart of any following of Sharia. Unfortunately, power and authority often go with arrogance and narrow-mindedness. Look at this old post and tell me that we don’t all have a commen ground.

    http://darvish.wordpress.com/2006/07/15/islamic-principles-of-peace/

    Ya Haqq!

  5. dezhen permalink
    November 5, 2006 11:45 pm

    I don’t know archie… I admit that I am not too clued up about Christian history (please fill me in if I am saying something ignorant :)), but the way Islam has reconciled difference seems to be slightly different.

    In the field of theology there have been many schools, but 3 generally survive to this day (in the Sunni camp, which is what i know about, the Shia have their own). All of them relate to what many people call the “traditionalists”, in that our creed is based on narrated tradition, but it is the way they historically articulted/defended it from other groups which is different: some stuck to pure textualism, while others took on methodology from the Greek tradition in order to articulate and defend the creedal positions from both internal and external critique, and so on.

    In the realm of law, however, it is/was very different. There have been historically divergent opinions, and they have all coexisted since the earliest times. The way the legal theory on difference works is that if you follow one of the schools of law (which is based more on interprative methodology than actual doctrine as such), and can validate your opinion based on the methodology espoused by the legal schools, then it is deemed valid; even if others disagree with it – even from within the same school. Much like the common law tradition there is the idea (at least within my school of law – Hanafism) of picking the “better” of various opinions, even though all are deemed “correct” for their time and place because they meet the aforementioned criteria. Many legal schools also have what can be called “minority” and “majority” positions, which is based on this idea.

    In this instance there seems to be a difference between how theology in Islam is treated and that of law.

    This relates to the problem of governance based on Islamic law because some of these divergences are rather pronounced. Take for example the Zina ordinance in Pakistan, and that of Nigeria. Pakistan is based on one interpretation of the Hanafi tradition (Turkey another, incidentally), while Nigeria is mostly Maliki.

    In Nigeria, they allowed pregnancy as a proof of ‘zina’ taking place, and we saw a few years ago a number of cases when this was the sole evidence of the act. The women on trial claimed rape, but their growing tummies were ‘proof’ of their infidelity.

    The problem being that the Sharia courts there did not follow the Maliki law properly – they mixed and matched. Maliki law itself has a number of legal loopholes and counter-evidence which would make pregnancy basically unviable as proof, yet, because they mixed and matched and based their Sharia position on a surface reading, some women faced the possibility of being stoned to death.

    This type of thing is one of the problems which exist when dealing with the far end of Islamic law, relating to Hudood.

    Another is apostacy – Hanafi’s for instance never classically accepted that a woman be killed for leaving Islam, whereas others (such as Imam Shafi’i) outlined that the evidence was so general that anyone who changes their religion should be killed by the state – even if a Jew became Christian as one absurd example shows! This already shows that at least some early scholars saw apostacy as not being related to leaving the faith alone, or else there would be no such disagreement.

    Yet we have other minority positions from even earlier scholars who say that the death of the apostate is incorrect, and that such a person should be given their whole life to repent – as the punishment rests with God on Judgement Day, it is not corporeal at all.

    These are some of the issues currently vying for a position in the Muslim world, but I think it is very different from Christian history, as since the earliest times Islam has had a legal tradition and state-function capacity. Has Christianity in any real sense? I understand the whole “render unto Cesear” thing, but that in itself shows the difference between Christianity (which seems to be more moral/theologically based) and Islam (which includes this and a state function within its ranks).

    What does everyone else think? This is an interesting issue!🙂

  6. November 6, 2006 5:16 am

    A very interesting issue and one I will write a full post on over the next day or two. Thank you for your insights. As you lack an indepth knowledge of Christianity, I lack an indepth knowledge of Islam. Perhaps we may help each other. From your comments, I still see a lot of similarities between the two faiths.

  7. November 6, 2006 5:18 pm

    Saqi, that’s exactly what has me worried. It also seems that the more extreme the ideology, the more likely one would be labeled a heretic that didn’t go along with that ideology, making it difficult for moderates (who don’t usually have the same “fight” in them) to stand up to them. In this particular case, I’m talking about the ME.

    Dezhen, yes and I know that you probably know this, but I’ll write this up for our non-Muslim friends and it helps clarify some of my questions.

    Dar-al-Islam state: Where Islam is the vast majority, Islam is supposed to be fully implemented by the government.

    Dar-al-Harb state: non-Muslims form the majority and Islam is not recognized by the governmen and Islam can not be implemented.

    Dar-al-Sulh state: In which there is a treaty and Islam can not be fully implemented, but here it is where we can try to implement Islam, although it is not expected that it would be fully implemented.

    Now, I realize that this is a school of thought, an old school of thought and nowhere in the Quran and from what I have read in the Sunna are these states described or a goal of Islam.

    I just read up on Tariq Ramadan’s thoughts and like what I have read:

    4. Dr. Ramadan writes: It is an era of diversity and complexity and mix which can no longer be encapsulated into a twofold and simplistic vision. Today we are witnessing a strong current of globalization; it is difficult to refer to the notion of dar (abode) unless we consider the whole world as an abode. Our world has become a small village and, as such, it is, henceforth, an open world. [Ibid, pp.130, 147]

    5. Dr. Ramadan writes: Muslim population are now scattered all over the world. Migration has been important and, in spite of most restrictive regulations, it seems that population movement are to continue: by now millions of Muslims have settled in the West. Their fate is linked to that of the society they live in, and it is unthinkable to draw a line of demarcation between them and the non-Muslims on the sole considerations of space. [Ibid, p.148]

    http://www.witness-pioneer.org/vil/Articles/misc/states-SAH.html

    While I never thought that Sharia would ever even become an issue for the United States, many of the sharia laws in the ME have me concerned. As I was looking at different articles that refered to Reis-Ulema Musatafa Ceric, I saw that he talked about Dar-Al-Sulh was a suitable state for Bosnia and I became concerned. While I was in Bosnia, I spoke with a few people and a few Imams and they seem to be worried about the rift that is happening because of the wahabis. Seems that wahabis are out there as missionaries getting Bosnians to take up wahabi views. That’s scary.

    Now, take into account that Islam is growing in Europe with some of the countries having a 10% population of Muslims, I get worried. England has a huge Muslim population and if you remember during the cartoon riots, there were Muslim protestors in London that numbered in the 200 range that had signs that read “London your 9/11 is comming”.

    You talked about your pet-peeve and I actually have different pet-peeves and that is that we have people out here that are not Imams that are trying to be the moral police.

    A few years ago I entered a new community as it is a shorter commute to get my children to Islamic school. I have always been involved within their schools and at their last school while I wouldn’t accept an invitation to sit ont the school board, I was on their relocation commitee, the fundraising commitee and I was VP of the Parent Teacher Organization.

    I jumped in with both feet as soon as school started, trying to help out with organizing a Parent Teacher Organization that the board would not allow. Long story short – turned out the PTO would not allow men into the organization as some women did not want to be in the same room with men.

    I was invited to sit on the school board and accepted the invitation. I was given hell by the women of the PTO, as they believed that women should not be in positions of authority (I wonder what they would think of my dad always used to say that I could be president of the United States if I wanted to). A young, english speaking with no accent woman that is a doctor by profession telling me that women should not hold positions of power, that women have no place sitting and communicating with men. Yes, I did bring up that she MUST in her career HAVE to speak with men and I got the run around.

    What amazed me is during our arguing that seemingly reasonable, educated women who support me over the phone and when no one else is looking stay quiet and just try to “calm” the situation. No one would take my side publicly for fear of “that side”.

    Now, it has been some time that things have been quiet and I seemed to have converted some skeptics and condemers into supporters and the rest have remained quiet. I made history by becoming the first female on the board and I know that change takes baby steps.

    Anyway, it has been through my own personal experiences where I have concerns and through personal experience that I have seen change take place.

    Archie – what you said about modern communication – I think it is what inspires so many of us to blog, we can make a change in this way. We can express our thoughts and concerns, communicate to our Muslim community and open up dialog and debate. I am on my blog, somewhat anonymous. I have emailed a link to most of my Muslim friends and my family and it isn’t too hard for people to figure out who I am that live in the Chicago area, but I don’t need to make it easy for a stranger to intimidate me.

    Irving – I agree, whoever wants to find peace will find it, but you have to want it. I will go look at your link🙂

    I look forward to reading more in regards to the similarities between christianity and islam both in this thread and through your own post. I’ve always thought that the church did have more to do with state in Europe at some time.

  8. theylion permalink
    November 6, 2006 8:01 pm

    great questions. you ask, “how do we ensure that a just sharia would be applied when we have such varying opinions?”

    well, to my mind, just legal and social systems are those based on principles like solidarity, communalism, and free expression. the hardest balance to strike is to protect individual rights without priviledging individuals over the broader social good.

    so, are there interpretations of the sharia that would facilitate greater social cohesion without imposing unreasonable restrictions on individuals?

    what seems really tricky is that this has to workboth within the muslim community and the broader communities that muslims participate in. so, in terms of the veil, are there interpretations of sharia that could respect both women’s liberation and freedom of religious expression, while also being true to the vision of sharia? if yes, than that line of interpretation seems like the right path to follow.

  9. dezhen permalink
    November 6, 2006 9:05 pm

    Hey guys, great posts… Just a few more thoughts before I have to get back to my Arabic homework (unfortunately :().

    archie: That would be great, I will definitely check it out. I am sure there are many similarities, because at the end of the day it all comes down to human enterprise. My lack of Christian knowledge comes from the fact that I was brought up in a nominally Protestant household, and the vast majority of history (empire and state, at least in Europe) has been connected to Catholicism.

    samaha: Prof. Tariq Ramadan has some interesting views, and I respect his opinions a lot. His idea that the 3 categories you mentioned are “outdated” and no longer realistic is interesting. I am not sure if you read it, but he proposed another type of classification: alam al-shahada (what he calls the world of testmony/bearing witness). A lot of people called him out on it, and said that this shows his undercover Islamism, but I feel they misunderstood his thought.

    This idea was connected to the idea of Muslims “bearing witness” to the tenets of their faith; not just dressing Muslim (whatever that is) and proclaiming themselves as Muslims (i.e. being “in your face”), but actually having a responsibility towards the wider community. This means, according to him, that our responsibility within the world in a wider-sense is to act morally and support justice, law and peace. I am paraphrasing a whole chapter from his book in a few words, but you get the idea.

    He proceeded then to effectively do away with the binary definitions espoused by the classical jurists because he moved on to talk about global centres of power… quite simply that the classical jurists dealt with the situation on the ground as they knew it, but that this is no longer the case. In his thought, the West was the centre of a circle, and the rest was the periphery, as the centre currently exerts its influence on everyone else. In this sense, he described the whole world as a “world of testimony”, and mentioned that those of us here in the West have perhaps an even greater responsibility to stand for the morally right in ‘testimony’ of our faith than others, as we can perhaps have a greater effect.

    I found this thought very intriguing.

    It is also a major principle of Usul al-Fiqh that if the conditions change, then the fatwa must also change (it cannot remain the same). Paraphrasing, and I am sure you know this too, but it is good to keep this in mind.🙂

    I have heard about the situation in Bosina as being like that too; the same for Chechnya and elsewhere. It is very troubling. I liked the good old days of the Tablighi Jamaat – they only were evangelistic towards other Muslims, and were incredibly polite – not so with todays new type of evangelistic Muslim! I sometimes feel very frustrated about the lack of organisation our communities have in response to all these (Islamically) new and alien ideas that are brought by these kinds of people.

    I would also say that the example you gave in Britian of the protests – 200 hardcore people saying silly things, out of how many hundred thousand, is hardly a worrying number… The problem is that they get media coverage and stick in peoples minds.

    Also not all of the people at such protests necessarily even knows what it is about or who organised it. I have been to some in London (though don’t live in the UK nowadays), and know that things are decidedly unorganised and that many people simply turn up to support Muslims without knowing the cause. This too is a problem, but that is another issue!

    theylion: This is the issue in a nutshell, you have hit the proverbial nail on the head. The issue is that there are competing interpretations of our socio-religious tradition, and that at the moment they are batting it out, so to speak. They range from the extreme left to the extreme right, and everything in between.

    Also our tradition tells us that what may work in one area may not necessarily be so in another, so I am not even sure that our situation as Muslims in the West has anything necessarily to do with the whole Shari’a argument, as I think it highly unlikely that we would have to consider it in any instance beyond perhaps personal law (wills, inheritance and the like) in our respective countries.

    In a judicial sense.

    But the Shari’a that many people actually have in mind is not the purely legal, it is the socio-moral teachings contained with in our religious heritage. Sometimes I feel that the distinction is not clearly made between these two sides: one is the realm of the judiciary and state, the other is the realm of every single Muslim. One resonates with Muslims everywhere as an ideal, the other is purely for governance.

  10. November 6, 2006 11:53 pm

    theylion, there are different interpretations and as others have pointed out everyone thinks that their version is the correct version and that eveyone else is a heretic. Not exactly like that, but we got some problems.

    dezhen – yes, I noticed his addition to the houses. He has some great points and I feel relieved to read the things I have read.

    You make great points in regards to the Brittish demonstration that I had mentioned. We do so lack the organization and it is very frustrating. Sometimes we do things blindly and it’s hard to break that pattern.

    Did you know that in Canada, some Muslims had organized to use sharia based family courts for Muslims? Although, in Canada at the time, Jews and Catholics had used religious tribunals to settle disputes and for family law.

    “http://news.bbc.co.uk/2/hi/americas/4236762.stm”

    Also, there was strong opposition by Muslim groups as well to the proposal of sharia law in Canada.

  11. dezhen permalink
    November 7, 2006 1:22 am

    Oh yeah, I remember reading about that a while back. I thought it was interesting, as I had always understood that personal law lets the people have certain liberties in how their state of affairs are disposed.

    I guess it also relates, in the community sense, to whos “shari’a” will be used in the courts, as right now there does not seem to be a consensus – even within and between the various ethnic groups – let alone overall and including people like me (converts).

    Though, I do feel one will most likely start to emerge the better educated us lay-people become. Once we are more widely read, then we can start pressuring the ‘ulema’ to begin doing what they need to do and not letting them get away with making unhelful pronouncements etc.

    The problem that I have noticed as an “outsider looking in” – coming from a non-Muslim background but then becoming immered in the Islamic tradition – is that of emotional attachment to Islam and being Muslim, without often knowing what it is or why this attachment occurs. It is a very procarious situation to be in.

    For example, there was almost a huge protest in support of the mufti here on the weekend, thankfully he made it clear that it would be unhelpful, but it left me wondering: why are you supporting someone who made such statements in the first place? For sure, call the media out on the nonsense they printed subsequently and all this other jazz, but it is clear that he made these statements (translated by at least 2 different translators), so they need to be addressed by us too. Either propvide proof that he did not mean them in the way they were taken, or deal with the facts; that we have issues which need to be dealt with in regards to how some people view women.

  12. November 7, 2006 1:10 pm

    You have me thinking that a literacy campaign for the ME/Asia is key to many of the problems that plague this community.

    I’m going to look into if there are any.

    I agree about the attachment to Islam and your example of the protest is a great example. It is very true that sometimes we just don’t question what the purpose is.

  13. theylion permalink
    November 7, 2006 3:09 pm

    One more question: my newest post asks about whether there are currents within Islam that are similar to Christian liberation theology. Are there? If so, where are they practiced?

    I’m very curious about this, since it seems like Christian extremism is often every bit as reactionary and violent as Muslim extremism. But Christianity also has a vibrant current that advocates social responsibility and human liberation. Are there similar currents within Islam?

    You can answer here or at theylion.wordpress.com/2006/11/07/extremism-and-democracy/
    My blog is brand new, so I’d love to generate some conversation over there!

  14. November 9, 2006 6:09 pm

    I love your writing, Samaha.

    In brief (because I need to grab a meal and the baby has pooped) I agree with you. I believe the principles and goals of the shariah are far more important than the specific details – plus, far too many of the specific details require revision …

  15. November 10, 2006 12:20 am

    This has given me food for a lot of thought. Thank you. I know that my blog is mostly about my life and wildlife and observations I have made, but I think about these things a lot. It helps me to have such well reasoned and realistic things to read.

    What I like about this blog and the comments that I have been reading here is the air of respect you all express towards each other. It is not shrill and angry discussion, and I really appreciate it.

  16. November 10, 2006 12:59 pm

    Koonj! Welcome! I am glad you stopped by and I am looking forward to checking out your blog as well (I have been a little busy as well lately). I think I’m still undecided about where I stand in regards to Sharia, though. I am going to have to do some reading on the subject.

    healingmagichands: I hope that the air of respect is maintained. The blog is still new and I do hope to bring more debate on here as I love to argue myself, but I hope that it will always remain civil.

Trackbacks

  1. Theylion’s Question To My Sharia Question « Samaha
  2. My Dream - an Australian Institute of Islamic Studies « Dezhen || Creative Morality
  3. Thinking Shari'a « Samaha

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