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Thinking Shari’a

March 15, 2007
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crossposted on my Eteraz.org diary 

A little bit of background on the post.  Over the past week or so we have been discussing Irshad Manji (from her role at the Secular Summit to her Project Ijtihad) and a post titled Firestorm by Jinnzaman has created quite an uproar in which both discussions have taken a turn at some point to the discussion of Takfir (declaring someone an apostate – which in some views carries a death sentence).  All of these discussion in some way or another relate to Shari’a in which my views and opinions have been changing – so this is my update since “My Shari’a Question” post.

I can’t think of any other word that is called upon so often, that evokes so many varied emotions ranging from pride and obligation to fear and loathing.  I can’t think of any other word that is brought up so often by Muslims and non-Muslims alike yet its very meaning, its very essence is elusive, misunderstood by Muslim and non-Muslim.

A word so clearly defined that oppressive regimes are based upon it, yet a word so obscure that democracies can be built upon it.  A word which inspired articulate systems of reason yet a word which inspired the destruction of the very same articulate system.  A word that would unite yet a word that divides.

Shari’a

A couple of months back I was questioning the realities of a “just” Shari’a based system and while I still do have concerns these days in regards to shari’a, I am starting to realize that under the right circumstances such system could very well come to exist.  Now, I am not that well read on the subject but a book here and there, a few essays, some posts and very many comments have opened new trains of thought.  I’ll have to say that the biggest contribution to my change in opinion was the book that I am still reading (stopped to read Ramadan Tariq’s latest for a book club that I can’t even attend now L )

Based on  Abou El Fadl’s The Great Theft as I understand it: shari’a is the divine law that is within Allah’s mind, the perfect law in the “divine realm” (1) an ideal that we strive to achieve through “fiqh”.  Fiqh being the human law and “therefore subject to error, alterable and contingent.”(2)   Distinguishing divine from human and the acknowledgement of human error as a basis for this system.

Over the past few days we have seen much discussion in regards to the loss of traditional Islam (while I am speaking of jurisprudence I am going to leave this out for now).  Somehow the combination of words “traditional Islam” made me think “conservative” but in reality it is not that.  Islam had a rich tradition of jurisprudence which not only included studying the Quran and Sunnah (complicated enough) but through analogies using past precedence and principles which often included public interest, thereby allowing laws to be “responsive to changing times and conditions” (3)   Practicing jurisprudence required endless education and research within the field of Islamic jurisprudence having first to receive many ijazas (licenses) from their mentors/teachers  before one would be qualified to be known as a jurist.  These points most of us I assume would agree on.

I’m sure that most of us would also agree that with the onset of Western colonialism and the decline of the traditional Islamic system came a reform movement which has played its role in securing the halt to this complicated traditional Islamic system and replaced it with a very literalist interpretation of Quran and Sunnah and rubber stamped a big “Shari’a” across it.

Where I think I differ is that I have always assumed that knowledge and reason was something that was demanded of me as a Muslim and therefore I needed to obtain knowledge to make reasonable and rational decisions of what is “Islamic” regardless of ijma (consensus) and whether or not I was a jurist – it was still my responsibility of being informed.  The difference between me and the very movement that spurred “individual” thought and the literalist interpretation of the Quran and Sunnah is that I do not deny the necessity of traditional Islamic jurisprudence nor the necessity to return to the traditional methodologies of fiqh if shari’a is going to be practiced.  Instead, it is through these very methodologies that we would be able to see a democratic form of fiqh.  One in which key word being “qualified” jurists would reason, research, analyze and form legislation and laws and where we would through our informed opinion be able to pass such laws through voting.  Not much different than what we have here in the US.  A shari’a based on democracy or a democracy based on shari’a is the only shari’a that I would be able to support.  In addition, I have only considered shari’a to be something adaptable in majority Muslim countries and something that Muslims could use as moral reference in matters of conscious outside of Muslim countries.

Now, while I have found this to be a light at the end of the tunnel, I still have an issue with shari’a and that being that the tunnel is too long.  In the wake of the demise of traditional Islam, we are left with a gaping wound; a void of precedence and practice of this very complicated science of Islamic jurisprudence.  We are left with Islamic schools within the Middle East that were once council to state that have now become council of state.  In other words, politics have entered Islam; to be more precise politics have developed the curriculum for these schools.  When it is stated that Islam and politics are not separable I concur but politics have played a greater role on Islam than Islam has on politics as of late.  What the Middle East has been left with is a society void of social growth, stuck in a realm of oppression and injustice and bringing back the traditional Islamic system is going to take hard work and a very long time all the while more and more suffering.

In light of that, I have recently been thinking that Ijtihad has created this state of confusion that we are now living in,  and after considering the many comments of Ijtihad being to blame for the very demise of traditional Islamic jurisprudence, I still believe that it still may take another Ijtihad to return it to what it once was.  As it stands we are living with literalists controlling what is Islamic and what is not and in order to fight that ideology, we have to use that ideology to prove our very point.  We have to use those very tools to inspire the masses to reform. 

However, another major obstacle exists and that is that the void of jurisprudence has to be filled as well and that is where the challenge lies; without this we will only be throwing ourselves into the ways of the 1800’s.  In reality this is the biggest challenge of shari’a and what would happen in the meantime? 
1.  Abou El Fadl’s The Great Theft  page 150
2. Abou El Fadl’s The Great Theft  page 150
3. Abou El Fadl’s The Great Theft  page 147

10 Comments leave one →
  1. March 30, 2007 8:07 pm

    Good post.

    I think there needs to be more research in developing judicial processes to safeguard against abuses in applying Islamic law.

  2. March 31, 2007 7:14 pm

    Thanks jinnzaman. I agree in terms of more research in devoloping judicial processes. I’m not sure that we can’t turn to the western model for some examples. That’s why I made one of the cracks that I did on your firestorm post. I think such system (successful) would resemble the western model.

  3. April 2, 2007 9:51 pm

    Sister Samaha, have you ever asked yourself, what are the Western models based upon?😉

    A lot of the contemporary Western judicial processes have their roots in Islamic judicial processes.

    While I”m not against studying Western judicial processes, I think it would be prudent to study indigenous Islamic formulations of procedural justice before looking at foreign ones, simply because such a conception would be more in conformity with substantive justice as well.

    I’ve got a bunch of interesting journals. Hit me up on AIM and I”lls end them to you. My SN is fbzaman007.

  4. April 22, 2007 1:39 pm

    Jinnzaman, We’re thinking along the same lines. My point was that we would demolish the western system only to recreate one that would be very similar.

    However, indigegnous and Islamic can not co-exist. Today, indigenous formulations (in regards to too many laws) are not Islamic. Getting to a point of fair laws requires far more than reviewing their legal system. It will first require changing their whole form of government to assure that that government can not corrupt or control the people through what they insist is “Islamic”. In my opinion that will require democracy.

  5. May 5, 2007 5:35 pm

    I’m not sure if it is possible to say that Islam and politics are never separable. But then, I guess it depends on how one defines politics.

    We should remember that the development of codified sharia (in the form of the Sunni madhabs) was largely a project of Muslim civil society, and occurred after the end of the khulafa ar-rashideen (which religious and temporal leadership were united in the person of the caliph).

    Indeed, the founders of the 4 schools were all mistreated by the rulers of their day.

    We should also remember that scholars of law frequently reminded their followers and students to avoid the courts of rulers due to the corrupting influence of political power.

    Indeed, it could be argued that the Muslim world has undergone the opposite of the Western European process of secularisation. In the west, the state sought to separate itself from the all-powerful church. Among Muslims, it has been religious authorities that guarded their separation from politicians.

    Of course, I admit I have expressed my argument here in somewhat simplistic terms. To tell you the truth, I am still sorting out the precise terms of this argument, and would welcome any feedback.

  6. dawood permalink
    May 6, 2007 3:56 am

    Good to see you more active on the blogosphere Irfy🙂

    Just to add my 2 (Aussie) cents: one thing that I have been coming to understand recently is about this whole “closing the gates of ijtihad” thing. I am firmly convinced that this event never really existed, and is merely a slogan.

    What happened was that the madhhabs developed over time and assumed a critical mass so much that the judges – who are the ones making the actual state law as oposed to fatwa (non-binding opinions) – all followed one of the schools of law. Thus, everyone – including those who construct state law – made “taqlid” to a madhhab, but this in no way implies blindness or the loss of ability to make ijtihad. to strive in developing solutions to new probelms.

    Personally, I don’t think ijtihad has ever stopped, except the issues regarding the passing on of knowledge, and the issues relating to the relationship between islamic law and the state have changed in modern times. Everyone in some sense makes their own “ijtihad” because people have to survive the best they can, and if no one qualified is offering any realistic solutions, people do what they have to.

    The issue of “qualification” is also in a quandry in the modern situation – some people claiming only “ijaza” will do – yet we have a multitude of people who graduated from religious institutions with degrees, over countless generations.

    I also don’t think that we can accurately imagine a utopiac vision of what shari’a in action would be – the application of law by nature is amorphous, even if the sources of law are fixed. Regional, cultural and other issues have always been considered.

  7. May 9, 2007 7:09 pm

    Welcome Irfan. Yes, it was a vague statement on my part and I don’t think that they are inseperable – it is a matter of getting them to be that way, especially with the way that state is so involved in religion and not vice versa within Islamic states. Let me repeat this:

    We are left with Islamic schools within the Middle East that were once council to state that have now become council of state. In other words, politics have entered Islam; to be more precise politics have developed the curriculum for these schools. When it is stated that Islam and politics are not separable I concur but politics have played a greater role on Islam than Islam has on politics as of late. What the Middle East has been left with is a society void of social growth, stuck in a realm of oppression and injustice and bringing back the traditional Islamic system is going to take hard work and a very long time all the while more and more suffering.

    I think that the paragraph shows that acknowledgement of separation. Even though the US is a country that practices separation of church and state, it does not mean that our presidents have not had religious council or that our society, congressmen, representatives, supreme court justices are not influenced by values that are religious.

    So how do we get the Muslim world in which government uses religion (mostly as a form of controlling disent) to justify inhumane practices to change? I don’t believe that we’d ever see an immediate separation of church and state. Rather, I think that we’ll see shari’a based systems that will become more just and then – there could possibly be separation of church and state.

    I myself am still new to this whole discussion, not sure how much feedback I can give – but dawood is a good source for info🙂

  8. May 20, 2008 4:25 am

    Today, indigenous formulations (in regards to too many laws) are not Islamic.

    But wait… I thought sharia allowed for democratic processes which could incorporate indigenous laws into the main body of laws. Do the indigenous laws have to be Islamic already in order for them to be accepted? If so, you’ve got yourself a theocracy with an impotent “demos,” for the only laws allowed are the laws which comply to the theology of the day, this would be dictated by the ulema, and even though they might do a good job, this would be a form of Theological Fascism, more specifically Islamic Fascism (please don’t ban me, Samaha). Where’s the protection from abuse if laws are ultimately based on what a select few theologians will concede?

    Gee, it’s only been a year, do you think Irfan Yusuf will see the comment I’m about to make? eh, oh well.

    In the west, the state sought to separate itself from the all-powerful church.

    That depends. Yes, the English broke away from the Catholic church and so did Luther, but it was the opposite in America. In fact, many came and still come to America to escape religious persecution.

  9. May 20, 2008 5:15 am

    Hehe – I’ve never banned anyone from my blog or censored .. but you should be careful not to make me very angry – I can be nasty mean🙂

    “Where’s the protection from abuse if laws are ultimately based on what a select few theologians will concede?”

    Well, select few is relative. It’s not different from what goes on here – lawyers, legislatures … blah blah blah… but in the end the general population would have influence on what is and isn’t acceptable, logical, reasonable…

    thanks for making me have to go through these comments again – i’m going to have to get those journals from jinnzaman.

  10. May 21, 2008 8:44 pm

    i’m going to have to get those journals from jinnzaman.

    Yes.

    Unfortunately, my (little) knowledge of Muslim attitudes toward sharia come from examinations of extremist groups. I’m in the middle of a translation of a French thesis called “Le Prophète et Pharaon.” I’ll have to writing down all of the books you recommend, it’s getting to be too long for a mental list!
    😛

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