By Roland Laffitte
21 March, 2016
Sharia is one of those terms that have a red-rag effect on the European imagination, so let's try to take an objective look at the issue.
At its origin, the Arabic "Sharia" means a place where you stop to drink water, but in the religious sense, it is the "path" for Muslims to follow, as set out in the Quran, much like the Halakha in Judaism and the Tao in Chinese philosophy.
It contains commandments relating to a person's "personal status", customs and even criminal law. While they may be of more limited scope than those in the Torah, these commandments do not carry the same weight as those of the Old and New Testament on the positive law in effect in contemporary societies.
A Legal Corpus and an Ethical Corpus
The Sharia emerged as a legal corpus at the same time as the Fiqh, or Islamic jurisprudence, at the end of the 8th century. And it is unsurprising that the few rules established to govern life in society in the small community of Medina were no longer sufficient by the time of the conquests.
This was not just as a result of the breadth and complexity of the questions posed by the administration of far-reaching territories as the Islamic world expanded. It was also necessary to respect personal status as dictated by the main religions, and to take into account a whole host of local customs.
When the Muslim conquests were for the most part over, theologians and jurists took up the task of bringing coherence to the complex web of rules spanning the Islamic world, much of which had emerged more or less spontaneously. They compiled an inventory of explicit and implicit rules set out in the Quran and by the Hadiths - the collection of sayings and acts of the Prophet Muhammed and his companions.
It was, however, not possible to extrapolate the underlying themes of established laws in order to create replacement rules to bind territory together. So the Sharia became a legal system that was not only a simple collection of rules for Muslims, but also a set of ethical principles that transcend religious life and guide life in wider society.
Since this effort to codify religion led to the formation of the main schools of thought, or Madhahib - of which there are four in Sunni Islam alone - there has always been a range of differing attitudes and notions on the nature and application of jurisprudence, right from the outset.
In the times that followed, the autonomy of the political sphere from the religious realm grew with the breakdown of central power. As of the Abbasid era, this brought about the formation of quasi-independent emirates, and later of sultanates, which assumed varying levels of freedom under the authority of the caliph.
Clashes with Modernity
Centuries later, the proportion and scope of Islamic law in societies where Islam was the main religion were drastically reduced with the arrival of European modernity in the 19th and 20th centuries. Whether or not this clash was accompanied by the imposition of an imperial-colonial regime, it resulted in the brutal imposition of radically different and exogenous norms, a trend that is today furthered by foreign pressure under the guise of globalisation.
This could not happen without causing profound upheaval in Islam, or serious and problematic adaptation across Muslim societies. From this point of view, modernising the status of women or abandoning certain punishments such as stoning - which are already uncommon but which are held up by the international media - have become emblematic of what is understood by "Islam".
They are, however, far from summing up the huge problems facing Islam and Muslim societies.
In this mammoth task of adapting religious, legal and social customs, a range of attitudes can be seen in which Islam exercises an influence over society, often with significant regional variations or even entirely local practices. This manifests itself in the major branches of Islam, their classical theological and legal schools and their tariqa or traditional brotherhoods.
These variations might contradict or complement each other. It would be wrong, however, to reduce the study of varying interpretations of Islam to its newest trends, only a small proportion of which filter through into the global media.
The Reason and the Divine
At one end of the spectrum, there is a "fundamentalist", "literal" approach, which interprets Sharia as a body of intangible rules, detached from space and time. It has been shaped by two lines of modern thought:
The first is the traditionalist approach, and to borrow a term born of North-American Protestantism could be classed as "revivalist". Preaching a renaissance, a puritan and hard-line return to origins, it manifests across a range of movements, with varying degrees of discord between two opposing poles.
Within this revivalist trend, there are schools such as the Tabligh or Wahhabism of the sheikhs of Saudi Arabia, which call up a personal, religious, quietest and apolitical sentiment - even a loyalist one vis-à-vis the governments in power, including in Europe.
There are also, however, schools of thought within this model aiming for armed subversion of states that, although invoking Islam, are accused of impiety and seen as apostates. Using such interpretations of Sharia and jihad, which they adopt for political combat, they claim to justify intolerance and the sectarian violence they push to new limits, as in the extreme case of movements calling themselves "Salafi-Jihadists".
At the other end of the spectrum of modern trends claiming allegiance to Islam, a different approach can be seen - one that is constant, though present in varying forms. It is an attitude that is open towards other religious and cultural beliefs.
One of the best known examples of this trend is linked to Jamal al-Din al-Afghani and Mohammed Abduh at the end of the 19th century. They are responsible for the popularity of the term "Salafism" - from Salafiya or "return to pious predecessors" - a label from which even traditionalist/revivalist currents such as Saudi Wahhabism benefitted.
But supporters of the reformist approach see this return to origins as a starting point for openness towards the modern world.
They extol, among the criteria for interpreting the Sharia belonging to most legal schools, the source of law named Ijtihad, "effort in interpretation", which allows a liberal reading of the scripture texts. In this vein, the Sharia is invoked less as a catalogue of rules that are necessarily linked to their context, and more as the body of ethical principles which underpin them.
There is a parallel to be drawn here, between the couplings of Sharia - taken in its ethical sense - and "real rights", with what the Greeks saw as "unwritten laws" as opposed to written laws.
Put differently, there is a similarity between what in Aeschylus' Antigon is "natural law" as opposed to "positive law".
A side note here: "natural law" being the rights that each individual has by dint of belonging to humanity, the absolute moral idea - distinct from "positive law", the collection of rights established, recognised and codified by a society.
This ethical notion also resonates with the work of Jean-Jacques Rousseau, specifically the element of the divine that involves reason, without which laws set out by the people and their representatives have, in his eyes, no legitimacy.
Trusting the Reformers
In The Social Contract, Rousseau states that "all justice comes from God; He alone is its source". But this is to turn divine law into ethical rule contained in a "civil religion" relevant to everyone, in a society with plural religious and philosophical beliefs.
The formulation of the ethical principle in theistic language does not stop him being considered as one of the precursors of the French value of secularism known as laïcité. Why would that which is granted to Rousseau be refused to Muslims on principle, when Sharia is also conceived of as this same ethical principle?
And why would the process of limitation of social rules that are seen as symbolic, and which are only roughly complete in Christianity and Judaism, be impossible due to the presumed nature of Islam?
Apart from a nostalgic minority, Christianity has for the most part embraced science, thought and modern society, despite those who think religion and modernity are incompatible.
We should, therefore, trust the reformers in Islam, both in countries on the eastern side of the Mediterranean and in Europe, as well as in Muslim societies, to find solutions which are suitable - rather than denying them, through a conceited and essentialist lack of vision, the right and capacity to modernise, as though they were afflicted by incapacity, somehow inherent to their nature.
Our vision of the Sharia - through polemic reduction or ignorance - as the alpha and omega of real rights is entirely counterproductive for Muslims. It simply stiffens the already antiquated rules to which the traditionalists/revivalists hope to be able to confine the Sharia.
At the same time, it pulls the rug from under the feet of the reformers in refusing them, on the grounds of it being nonsensical, the use of the word "Sharia", even for addressing their fellow believers with whom they seek to exalt the spirit at the expense of the text.
We should instead be looking to break with the lexical exterior of the word "Sharia" to extract the universal ethic at its core, for everyone would benefit as a result.
Roland Laffitte is an etymologist, academic and writer based in France.
This is an edited translation originally published in French by our partners at Orient XXI.
Opinions expressed in this article remain those of the author