There are today when it comes to speaking about Islam and Muslims some terms that immediately stir up strong emotions. One of these terms is Sharia. I would like to spend a few minutes deconstructing this concept so that we move away from the common attitudes of either attacking Islam or defending it, and instead have a better understanding of the challenges that we all face as members of the global community.
Let me first start by insisting on one important point that is often absent from what is available in the media and in many of our public discussions: we cannot understand the concept of Sharia if we are not good historians. We have to learn to be very attentive to how a term is used and a concept constructed in history. The concept of Sharia like all concepts is not timeless; it is historical. We must be careful not to fall into the trap of letting the claims of this or that interest group blind us to this simple fact.
The term Sharia and other words from the same root only appear four times in the Qur’an. The word Sharia in the context in which the Qur’an comes to existence means the way to water. We must remember that we are talking about a tribal society in the desert with scarce resources, and finding water is basically survival. So, we could see that the term Sharia has strong symbolic value. Yet, it only appears in this form in the Qur’an once in Chapter 45 verse 18. In this verse, it seems to be used in a general sense, with the meaning of “a way worth following.”
Let me now move to about a century and later. The small community that originally comes to life around the Quran in Arabia in the 7th century is now a large empire spanning Iraq, Iran, Syria, North Africa and more. In other words, we have much more complex settings with rising urban areas and many encounters with a variety of other communities. In these contexts, a rising class of religious scholars played a crucial role in maintaining a more or less stable social organization. They developed legal rulings about how members of the Muslim community should live their lives. So, we have here an early growing body of legal materials that is called fiqh. This is a very important term to remember. Fiqh literally means understanding; in this case a technical understanding of what Islam requires of its adherents as members of a religious community.
Study circles sprang in different regions around famous teachers of fiqh, some of these teachers will be viewed later as the founders of schools of fiqh, for example a man by the name of Abu Hanifa in Iraq and a man by the name of Malik in Medina in Arabia. The problem is that each region was now developing its own local tradition, which in some ways threatened the unity of a religious community that was still forming and still at this point in history remaining a minority among the populations of the conquered areas. There needed to be an anchor; the Qur’an of course could be that anchor, but the Quran is not a legal book. Only a limited numbers of verses can be made the basis of legal rulings. At that time we see the growing influence of what is called the Hadith movement.
A hadith is report about what the Prophet Muhammad said or did, and the proponents of the Hadith argued that the hadith materials had religious authority, and that they took precedence over any other legal opinions. The Hadith movement will ultimately be successful after fierce intellectual and political battles. And it will take almost another century to produce Hadith collections that would gain wider acceptance.
In this process, we could also see the slow success of grounding legal organization in religious texts, the Quran and the Hadith. Sharia, understood as God’s way becomes more and more viewed in legal terms; God’s will is seen by the religious experts as first and foremost legal. Muslim jurists argued that all the actions of the believers had a religious legal status, they developed five categories: an action was either mandatory, recommended, permissible, reprehensible, or forbidden.
Muslim jurists also further developed legal theory, seeking to ground all legal rulings in the religious texts by using a methodology of interpretation called qiyas and closing debates on some issues using the concept of ijma’ or consensus. There were variants to all these frames and diversity of opinion remained part of the legal discourses. This was a sophisticated and very rich legacy of debate and intellectual disputation. Sharia was generally seen as the will of God in the absolute, while the specific details of the law were interpreted by the qualified jurists within the different schools of fiqh. I must also add that in practice, local cultural traditions and customs had a big role in social organization and social relations, especially in rural areas, which formed the majority of the population in the world of Islam. As for Sharia discourses, they were supported by the political rulers but their most important impact was in big urban settings.
Let me now fast-forward to the modern period. I will focus on three points to clarify some of the frictions around Sharia:
- The Challenge of Modernity and the Legacy of Colonialism.
At the intellectual level, modernity seriously challenges the claims of religious traditions. It proposes alternative ways to view the world. This is not unique to Islam, both Christianity and Judaism for example faced the same challenges. With Islam however, there is the added element of modernity having entered the world of Islam on the back of colonial powers like Great Britain and France. The legacy of European colonialism is largely one of exploitation and oppression, making the relation of Muslims to modernity very difficult. The colonial powers tried to dismantle and in many instances did dismantle traditional structures including traditional religious institutions; and they belittled the long legacies of these institutions. Yet, they favored the Islam of fiqh among the local Muslims to maintain stability and social cohesion within the colonized areas. This contradiction impoverished Muslim discourses more than ever. In the meantime, the modernization policies implemented in the colonies and areas of influence was at best half-baked and mostly served the economic interests of the colonizers at the expense of the locals.
- The Policies of the Postcolonial States
The processes that I described in the legacy of colonialism did not end when the colonial powers were pushed out. After independence, Muslim populations found themselves for the first time under the structure of “modern” nation-states with many of their borders having been drawn by Western powers. But to build their legitimacy, these postcolonial states did not democratize and did not establish popular sovereignty as an anchoring force. They were in most cases authoritarian regimes that continued to use religion at some level or another, for example in the educational system and in the controlled media. So they used religion to legitimize their rule in the eyes of the populations even when their political agendas were grounded in something other than Islam.
One important element to add here is that many of these nation-states viewed themselves as needing codes of law to organize their societies. This issue had already started during the colonial era and the result is that in family law (but not necessarily in criminal or commercial law), there was a codification of the fiqh rulings of this or that premodern fiqh school. Fiqh rulings were made into codes of law to be imposed on the populations in the name of the state.
What do we have here?
We have another step away from Sharia as a process of debate and as a constant, diligent, and necessarily flawed search for God’s will, and a step toward rigid codes of law that are perceived by the Muslim public as sacred and as being of divine origin. The problem will only become worse with the rise of opposition movements using Islam as their frame of reference and calling on the authoritarian regimes to implement what they call “Sharia” to all aspects of law and society.
What this is in reality is a call to implement the legal rulings of premodern schools of fiqh, many of which clash with modern sensibilities, modern social organization, and modern individual independence. The examples are many and they concern gender issues with women having a lower legal status, issues of freedom of conscience with apostasy or leaving Islam being punishable by death, issues of relations with non-Muslims and the use of symbolic or physical violence, issues of corporal punishments like the cutting of the hands of thieves or the stoning to death of adulterers, and a number of other serious issues.
- The Scholars of Sharia and Modern Knowledge.
One of the biggest challenges to moving the discussions on Islam to become more fruitful is the fact that traditional Muslim religious scholars remain generally untrained in modern academic fields like history, sociology, anthropology, psychology, linguistics, etc… These fields can open so many new avenues for Muslim scholars to reconsider the field of legal theory and the concept of Sharia itself.
There are many political, sociological and psychological reasons for the failure of a modern Islamic studies field to take hold in Muslim contexts. The hope is that it is only a matter of time before we see a positive change towards younger Muslim scholars embracing and using the latest findings of the social sciences and humanities to rethink some of the assumptions of their ancestors and to give contemporary Muslims a chance to fully live their religion and their times.
But Let’s also hope that the defensive attitude of Muslims activists and the constant attacks of bigots on Muslims will not end up undermining the potential construction and spread of a humanistic Islamic framework within Muslim communities.