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Islamic Sharia Laws ( 19 Jun 2012, NewAgeIslam.Com)

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Some Thoughts on Sharia as Islamic Law


By Adis Duderija, New Age Islam

One of the most controversial aspects of the Islamic tradition today is the concept of Shariah law, especially when coupled with the much debated and often heated topic of the role and the status of women in Islam.  Even to the educated (western) (non) Muslim audience the term Sharia law or Islamic law  usually brings to mind barbaric, demeaning, medieval type practices such as stoning to death, cutting off hands, forced marriages, honour killings or the image of Muslim women  wearing abayas with Niqabs , chadors , or Hijabs . Some of these images are further reinforced in popular discourses including literature and Hollywood (-like) movies to be found in popular literature or media. These accounts are often written in a compelling fashion in form of biographies evoking in the reader strong emotions of sympathy for the victim (Muslim women) and anger and frustration (directed at the men and institutions which uphold Shariah law) .

With the significant presence of Muslims now permanently residing in liberal democracies in Western Europe , North America , Australia and New Zealand  some of these peculiarly ‘Islamic’ practices ,especially the face-veil wearing Muslim women, are at times further entrenched in the minds of an average (non) Muslim (westerner) by their very presence in the streets of many western metropolises. Furthermore, the demands by a minority of western Muslims to incorporate and officially recognise  Shariah tribunals in the sphere of family law into the western legal systems, (something that other religious communities such as orthodox Jews and some Christians had the right to enjoy), for those who wish to be governed by them, has raised alarm bells, if not panic, among many non Muslim westerners and some western Muslims too amid the fears that the barbaric, archaic, women demeaning Shariah law is coming to the West and is to stay there for good.

To many a Muslim, however, at least in theory, Shariah law evokes a completely different set of ideas, images and emotions. These include justice, ethical beauty, mercy and forgiveness. How can this be?

In what follows I will attempt to explain why. First, I start by describing the meaning and the importance of the concepts of Shariah in Islamic religious cosmology and the underlying principles associated with it. I also make a few remarks regarding the nature of the normative sources of the Islamic tradition which are the building blocks of Shariah law.

From the very outset it must be acknowledged that the concept of Sharia is much broader than that of its reified historical manifestation that found its expression in the term Shariah law. To fully understand this we need to say a few things about what the word Shariah means and connotes in the overall Islamic religious cosmology.

Etymologically, Shariah designates a path towards a source of life sustenance. (In the context of 7th century desert Arabia, the birthplace of Islam, this idea of sustenance is understandingly linked to a path leading to a water-whole). In the religious cosmology of the Qur’an, the Muslim Holy Book,  it denotes an understanding of the world ( or worldview) and ,therefore human life, according to which all the living and non living matter was created by a Most Merciful and Most Compassionate God( Allah) who is its Eternal Provider, Sustainer, Guide and the Source of its Beauty and Majesty.  In the case of humans this idea of Provider, Sustainer and Guide encompasses both the spiritual and non spiritual aspects of human existence. Additionally, central to this religious worldview, is the idea that the concept of Shariah evokes that God Allah has created humans with an innate nature [fitrah] which longs for God and His Guidance. Humans might not even recognise this dimension of their existence as a result of their constant or prolonged ungodly actions and behaviour which have caused them to become alienated from God and therefore from their natural predisposition to ‘surrender’ and ‘worship’ God. However, their consciousness might occasionally become aware of their fitrah, especially at times of great need or crises which may be spiritual or non spiritual in nature.

Another important idea that underpins the concept of Shariah is that God has bestowed upon humanity both a heavy burden and a mark of distinction from all other creation by giving them free will and by appointing them as God’s trustees ( khalifa) on earth.According to this religious cosmology dimension of Islam humans are the only creation of God who can consciously both err and therefore deviate from God’s path of righteousness as well as become more saintly that the angels ( who are deprived of free will) by acting in ways which are in consonance with God’s Will and their innate nature. The former will lead to a life of (spiritual) deprivation and damnation and the latter to that of state of spiritual bliss and God’s proximity.

To summarise,, the word Shariah and its etymologically related terms as they occur in the Qur'an and in the Islamic tradition denote something that is of great value, something that is associated with the most positive of connotations , something that is highly desirable and greatly sought after..

Given the above briefly sketched Islamic religious cosmology it is understandable that Muslims have always felt the need, and still do so today, to be ‘guided’ by God in their everyday lives including in the sphere of law. The primary source of this guidance is Islam’s Holy Book, the Qur’an. The Qur’an as ‘text’ is a complex phenomenon and, for reasons we cannot discuss here,  to understand and appreciate its structure, language and content requires a mastery in a number of different sciences. One thing we do need to keep in mind is that often Qur’anic content is in need of commentary, elucidation and explanation. The Islamic tradition, basing itself on some verse in the Qur’an, developed a doctrine of the religious obligation to follow the Prophet’s Muhammad’s embodiment of the Qur’anic guidance, through whom the Revelation was revealed to humanity. This explanation and elucidation of the Qur’anic message was termed Sunna. The term Sunna existed in pre-Islamic Arabia designating exemplary conduct of an influential individual worthy of emulation. According to this traditional Islamic doctrine Prophet Muhammad as the recipient of the Qur’anic revelation is considered to be best ‘qualified’ or the most authoritative person to interpret, comment on and elucidate the Qur’anic message in order to provide guidance to believers.

In addition to the doctrine of Sunna there are other concepts and principals which have a direct bearing upon understanding of the term Shariah law and its interpretation. In Sunni Islam, the most statistically representative branch of Islam in terms of Muslim numbers, the idea of the interpretational authoritativeness of the salaf as salih ( generally understood to be the first three generations of righteous Muslims) of the Qur’an and Sunna arose.  According to this doctrine the temporal proximity of these generations of Muslims to the time of Revelation and the Prophet Muhammad and their (perceived) immense contribution to Islam means that their (methods of) interpretation of the Qur’an and Sunna, if evaluated as being authentically originating from them, are to be privileged over those of later Muslims. In Shiaism, the second most representative branch of Islam, this interpretational precedence was bestowed on the Prophet’s grandsons and their progeny (known as imams or religious leaders of the Muslim community).

Now going back to the concept of Sunna mentioned above it is important to bear in mind that to some Muslims the concept of Sunna found its expression in the numerous oral reports later put down in writing, known as the hadith. These have been collected over a period of the first two to three centuries of Islamic history. Hadith contain information transmitted through a chain of transmitters reportedly going back to the Prophet himself about what he said, did or tacitly approved. In a similar fashion to Sunni hadith there are Shi’i hadith that report, again through a chain of transmitters considered authentic, what the Prophet or the Imams might have said, done or tacitly approved . Now, because some relatively small sections of the Qur’an contain matters of legal import and because Prophet Muhammad ( and the Prophets’ most notable Companions and Imams) are reported to have adjudicated upon legal matters that have arisen during his twenty or so years of Prophet hood, Muslims, over time, developed a body of knowledge which deals with the methodology of interpretation of the Qur’an and Sunna for the purposes of explicating laws for the benefit of guidance of the believers in their daily lives.  In the early Muslim history this body of knowledge was known as fiqh, a word connoting human understanding of the evidence that could be found in and deduced from the Qur’an and Sunna on a particular matter of legal import. Probably because the purpose of fiqh in the overall Islamic religious cosmology described above functioned as a form of guidance it was also conflated and described with the word Shariah.  Over time a number of Islamic schools of law and sophisticated legal theories were developed which interpreted the Qur’an and the Sunna. From then on every new generation of Muslims approached the interpretation of the Qur’an and Sunna in the following ways: 1. by engaging them in the light of previously established legal theories rather than directly. This method is known as taqlidi method. It has given rise to what is here termed scholastic traditionalism and is the most representative method among traditionally educated Muslim scholars. 2. By largely circumventing the taqlidi method and insisting on a methodology which engages the Qur’an and hadith texts directly in addition to the (supposed interpretational) consensus of the early generations of Muslims. This method branches into two distinct approaches, namely the one which prioritises the Qur’an and its reason based interpretation for purposes of law explication and has a relatively critical stance towards the authenticity of the majority of hadith texts (we term this approach here modernist) and another one which prioritises hadith based interpretation of Qur’an and Sunna over that of reason and reason dependent interpretational principles and applies it to the realm of Islamic law.  3. By discarding the hadith all together (but not necessarily the concept of Sunna) and base Islamic Law entirely on the Qur’an. This is the least representative method.  4. By combining 1.and 2 in addition to interpreting the Qur’an and Sunna in light of contemporary knowledge in humanities and social sciences. We refer to this approach as modernist. Although it is a minority approach at the time of writing of this the author believers that it is a growing one nonetheless. It is also important to note that the first three approaches, in terms of their sources of and the manner of authenticating of knowledge, are entirely pre-modern and are governed by pre-modern traditional sciences developed by Muslim scholars.

Having outlined the above, it is essential to understand (and keep in mind) that the idea of Shariah as law is an entirely interpretative endeavour.  By this I mean that every understanding of Shariah as ‘Divine Law’ is a result of human interpretation of the Qur’an and the Sunna. Every interpretational model of the Qur’an and Sunna is based on different interpretational assumptions. Analysing and scrutinizing these assumptions carefully will provide us with real insight into why different understanding of the Qur’an and Sunna exist.

Dr. Adis Duderija is a research associate at the University of Melbourne, Islamic Studies. He recently published a book: Constructing a Religiously Ideal "Believer" and "Woman" in Islam: Neo-traditional Salafi and Progressive Muslims' Methods of Interpretation (Palgrave Series in Islamic Theology, Law, and History.