By Ziauddin Sardar
September 08, 2008
Before I tackle Andrew's questions about theory and practice, let me first answer Shamim's two specific questions: is Sharia a Qur'anic concept? And just what is the relationship between the Qur'an and Sharia law?
Given that Sharia is often describes as "God's law" and has become so central to Muslim existence, one would expect the term itself to appear frequently in the Qur'an. But, strictly speaking, Sharia is not a Qur'anic concept - it is not like such concepts as 'Adl (justice) Khilafah (trusteeship) or jihad (sustained struggle) that are repeatedly mentioned, discussed and elaborated in the Qur'an.
The word itself occurs, in variations, twice in the Qur'an. In 45:45, we read: "We have sent you, O Muhammad, on a clear religious path". The path referred to here is clearly the path of the Qur'an and the guidance that it provides. In 5:48 we are told: "We have assigned a law and a path to each of you". The reference here is to guidance that God has provided to all nations and communities through his prophets, according to the time and condition of each community. In neither case can we infer that the term Sharia is used as a codified, canonistic, unchanging law that is supposed to exist for all time.
Literally, the word Sharia means "the way to a watering hole", a place, anywhere, where you can drink, refresh and revive yourself. The term really came into vogue during the Abbasid period in the eighth century, when Islamic law was codified. But the Sharia was socially constructed, not just as law but also as morality, and is now used to simultaneously to mean both law and morality.
The Sharia, we are told, is divine and cannot be changed, so one would expect it to have a direct relationship with the Qur'an. Yet, there are few aspects of the Sharia that are directly based or derived from the Qur'an itself. If, for example, we look at the Muwatta, the seminal legal text by eighth-century jurist Imam Malik, one of the codifiers of Islamic law, we see that the Qur'an is only there as an embellishment. Malik relies extensively on Hadith. Something else also came into play when the Sharia was being codified: Arab custom. Custom is not recognised, theoretically, as a source of Islamic law, yet it played a central role in both shaping Islamic law and its growth and development.
Throughout centuries, Sharia law also came to incorporate what is known as Fiqh, knowledge of Islamic law or jurisprudence. This consists largely of the opinion of classical scholars that seems also to have become immutable. So what we call Sharia today is largely Fiqh, Arab customs, and law based and developed on an eighth-century understanding of society - all of which also serves as Muslim morality. It is hardly surprising then that not much of the Sharia bears any relationship to what the Qur'an actually says.
The discrepancy, Andrew, between theory as presented in the Qur'an and Sharia which is supposed to be practice, arises in three forms: (1) Sharia frequently acts against the strict injunctions of the Qur'an; (2) what the Qur'an relegates to the periphery as extreme or boundary punishments, the Sharia brings to the centre and makes them the norm; and (3) while the Qur'an repeatedly insists on justice, Sharia often ends up propagating injustice.
We can see a clear demonstration of this in Channel 4's Dispatches programme, "Undercover Mosque: The Return". In a sequence where a Saudi-educated female scholar is teaching "Sharia law", we hear:
"The one who changes his religion, what are we going to do? We kill him, kill ... "
She goes on: "The judgement about adultery: what is the law? Stone them".
Nowhere in the Qur'an we find anything remotely related to stoning.
"If someone makes themselves like a man, a woman like a man, the punishment is kill, kill them. Throw them from the highest place ... homosexuals".
Once again, this could not be more further from what the Qur'an teaches.
"We have to look for hudd", the Saudi-educated scholar tells her student, "the hudd is to kill them".
As we have already seen, hudd, meaning outer limits or boundary, has nothing to do with punishment and everything to do with establishing the moral tone of the Muslim community. Yet, it is being propagated here as the norm. There seems to be only one rule: kill everybody who disagrees with you, or is seen by you as deviant, or breaks your rules. It is the total antithesis of the spirit of the Qur'an.
While these sentiments are totally alien to the Qur'an, they can be found in some books of Sharia and fiqh. The Saudis follow the Malikischool of thought and these so-called laws can be found in the Mawatta. They illustrate, without doubt, how far the Sharia has deviated from the teachings of the Qur'an, how little relevance it has to the Sacred Text, just how intertwined it has become with ancient Arab customs, and how irrelevant, absurd and ridiculous the Sharia appears in the contemporary world.
Now, to Andrew's other point. I am not arguing, as you suggest Andrew, that there is "a body of pure and enlightened theory which would enable Muslims to correct their corrupt practices". There can never be a "pure" theory. The theory is definitely located in the text but the text itself is dynamic, open to different interpretations, and has a very specific context. The legal or quasi-legal pronouncements we find in the Qur'an are always accompanied by a principle that explains why a law is being enunciated. What I have tried to show is that to understand the legal principles we need to appreciate the context in which various verses in the Qur'an were revealed. It is the principle that is of the essence; the actual legislation is only relevant as long as it is faithful to the principle. When the context changes, the situation on the ground moves on, the law fails to reflect the principle and has to be changed. Classical Muslim scholars, like Malik, did recognise the principle but argued that even though the law is occasioned by a specific situation, its application is universal. That, I believe, was a fundamental error.
Far from being divine, the Sharia is almost totally a human product. Law changes as society and its needs change; and Sharia has to be reformulated from epoch to epoch. Moreover, we need to distinguish between legal enactments, which are subject to change, and universal moral injunctions. Only by making this distinction can we truly understand the spirit of the Qur'an - and sort out some complex issues of reform, such as those related to women's rights.
This is already happening. The personal aspect of the Sharia, for example, has been totally reformulated in the new Islamic family law of Morocco. The model marriage contract produced by the Muslim Institute is also an attempt to reformulate certain aspects of the Sharia. We now need to extend this to other areas - particularly those of crime and punishment.
Between Theory and Practice
By Andrew Brown
September 08, 2008
Back in my role as devil's advocate, I'm interested in the question raised by Shamim in comments last week: how does the conflict between theory and practice play out in Sharia law?
If the Qur'an is the theory of which Sharia law is the practice, then it's not at all obvious why believers should be able to discard some of the clear and unpleasant legal prescriptions of the Qur'an merely because they are repugnant to our moral sensibilities.
Obviously most Muslims don't want or believe in the crueller punishments; quite possibly polygamy is a minority enthusiasm. They behave much better than that. But when they do, practice seems to take precedence over the theory and to correct it.
My sense of Zia's argument is that this is the wrong way round. He seems to be appealing to a body of pure and enlightened theory which would enable Muslims to correct their corrupt practices and to suggest that this theory can be located in the Qur'an itself. But the text can be used to justify all sorts of things that he (and I) regard as horrible. So the theory has to be located in the text according to some particular school of interpretation. Fair enough. But in that case, two questions arise: does this school have any institutional form or tradition? Secondly, and more important, does the Qur'an itself suggest that there is one true interpretation of its teachings which will translate into a body of divinely intended Sharia law? Or does it allow a multiplicity, with no way to choose between them?