Understanding Sharia

Islamic Law in a Globalised World

Raficq S. Abdulla, Mohamed M. Keshavjee

• Publisher: I.B. Tauris
• Year: 2018
• ISBN:
  9781786724052
• Edition: 1
• Topic: Theologie & Religion
• Subtopic: Islamische Theologie

Sharia has been a source of misunderstanding and misconception in both the Muslim and non-Muslim worlds. Understanding Sharia: Islamic Law in a Globalised World sets out to explore the reality of sharia, contextualising its development in the early centuries of Islam and showing how it evolved in line with historical and social circumstances. The authors, Raficq S. Abdulla and Mohamed M. Keshavjee, both British-trained lawyers, argue that sharia and the positive law flowing from it, known as fiqh, have never been an exclusive legal system or a fixed set of beliefs.

1

Sharia – Origin through Revelation, Historical Development and Change

The Advent of Islam

The 7th century in Arabia was a watershed – the Roman Empire had declined, the Sasanian and Byzantine empires were in decay for reasons that are beyond the scope of this study, and a new civilisation was coming into being thanks to the mysterious and dynamic revelations received by an Arab from the Quraysh tribe of Mecca, who claimed an inherited connection with Abrahamic predecessors who had been prophets in the previous millennium and were part of the narrative of the Bible. This man, who was a trader employed by his wife Khadija, was Muhammad ibn ‘Abd Allah. In the course of his life he developed the practice of meditation, for which he would retreat to a cave in the hills surrounding his city of Mecca. It was on one of these retreats that he was assailed by the appearance of the Angel Gabriel, who ordered him to read – iqra! – although he was said to be illiterate. Thus began the revelations that became the core of the Qur’an, the holy book of Islam.

At first, these revelations were ignored by the people of Mecca. Only Muhammad’s first wife, Khadija, recognised them as the words of the divine, a mystery that had the potential to change the world. As time passed, Muhammad’s revelations were accepted by a few of his close companions, even though the notions therein were revolutionary and challenged the traditional tribal ways of his people. In due course, Muhammad and his followers had to escape from his enemies in Mecca, and some took refuge in Christian Abyssinia and then later he and a few of his very close companions were received in the oasis town of Medina. What began as an exhortation to people to believe in the One God and to follow a path of righteous faith and action became the basis of a grand religious discourse which continues to profoundly influence hundreds of millions of people today. The Revelation opened a powerhouse of spiritual and practical energy that swept across the world, spreading from Mecca and Medina into the Sasanian and Byzantine empires, and reaching as far as Spain and India within a hundred years.¹

The new religion challenged everyone. First, it affected the local Arab population in the peninsula who were forced to change their mode of behaviour, to adapt to, and adopt, the more universal ethical and practical demands of the faith. Later, it affected wider populations across the world, in Byzantium and in Persian lands including Central Asia, with whose populations the newly energised Arabs had to find a modus vivendi as conquerors and occupiers. This mélange of values, demands and expectations revolutionised societies and brought great changes in attitudes amongst many people who were now faced with new norms that both challenged and integrated old values, enriching both them and itself. Thus were born the foundations of sharia, which at first was regarded as an ethical path but, over the course of three centuries, developed into a system of legal practice and conventions that has moulded the identity of Muslims.

Sharia

Sharia signifies a path to a watering hole, a point of departure, a journey – a straight and bounded path that leads to a desired and desirable destination – which demands from the faithful proper action and right belief according to the precepts sent down in the Revelation. It also entails a duty to submit to the will of the Almighty, but the term sharia is mentioned only twice (as sharī‘a and a synonym shir‘a) in the Qur’an,² the supreme holy text for Muslims, or the umma, which consists today of a vast, diverse and multifaceted community of believers living in some 58 countries across the globe as well as in non-Muslim nation states. Sharia is, in a sense, law – but not law as we understand the term in modern secular societies. According to the American scholar of Islamic law Bernard Weiss, the scholars of Islam, independent of the caliphate,³ aimed to control the development of a grass-roots spiritual leadership. In this sense, they were more than jurists in the usual sense of the term, for they attended to much more than the law. Their horizon encompassed an entire way of life and of day-to-day living that went beyond what usually counts for law in the modern world. This included a set of norms, legal, moral and ritual, which over time came to be known as sharia. For this reason, Weiss feels it would be ‘incorrect to equate Sharia and law simpliciter as is often done’. He concedes, however, that law is clearly part of sharia in Muslim thinking and therefore must always be understood as such.⁴

Legal Content of the Qur’an

While the Qur’an was, and continues to be, the moral compass for Muslims, strictly speaking it does not provide a code of law. The legal content of the Qur’an amounts to about 10 per cent of its text.

The Qur’an, a book of dynamic tension, of great beauty and practical wisdom and advice, mentions sharia, as we have said, only twice. It should be noted that it does not dwell comprehensively on this aspect of the Islamic faith, as Noel Coulson points out: ‘No more than approximately eighty verses deal with legal topics in the strict sense of the term.’⁵ Sharia thus evolved and developed over the early centuries of the faith from a nascent, flexible process at the origins of Islam into an apparently hard-and-fast body of sacred law (to which are attached its various modes of implementation into positive law, known as fiqh) which informs the identity of Muslims today. This process did not take place immediately but evolved over three centuries. It should be reiterated that the word sharia does not have the same connotation as law as understood in the secular Western sense. The following diagram gives an idea of what we understand the term to encompass.

Sharia – An Interconnected System

In this diagram, the vertical co-ordinate represents the individual’s relationship with his or her creator, which is exemplified by worship and other acts of personal and communal piety, known as ‘ibadat. This includes praying, almsgiving, fasting, pilgrimage to Mecca and the affirmation of faith – the shahada: ‘there is no god but Allah and Muhammad is His Messenger’.

Muslims also have a transactional relationship with their fellow beings, known in sharia as mu‘amalat and covering commercial transactions such as contracts, civil actions including torts, domestic issues that affect inheritance and marriage, and other issues of a civil nature. In this part of sharia, of course, we should include criminal offences, which today in some cases have become problematic. This issue will be dealt with in Chapter 5.

The third relationship is based on Muslims’ duty of responsibility to God’s creation, to the planet, to all living creatures and to the environment. This dimension of the faith is called amanat, which means trust or acting as a trustee responsible for the upkeep of the environment to enable future generations to enjoy a healthy inheritance.

Sharia encompasses all these relationships, and the line in the diagram above that links all these points is the straight path labelled sharia. Muslims are obliged to adhere to this path, which has to be continuously assessed and interpreted according to the circumstances of the time.

Interpretation

Interpretation, which is a disciplined, dynamic and dialectical process, is essential to understanding the nature of sharia and, indeed, the faith of Islam as a whole. For observant Muslims, that is to say most Muslims, sharia arises from the parts of God’s speech inscribed in the Qur’an, containing His voice in Arabic and collated a few decades after the death of the Prophet into a single volume (mushaf). The law, therefore, is distilled from God’s speech into a text and has been later interpreted and expanded by certain legitimate and communally accepted processes which contain and affirm its pre-eminent standing. Clearly, sharia is distinct from law as understood in modern secular societies where its nature is subject to continuous examination and is a matter of philosophical and practical speculation and debate without a final answer.

From the earliest days of Islam the need for clarification and interpretation arose, and in keeping with the Quranic injunction, ‘obey God, obey the Prophet and obey those who hold authority from amongst you’,⁶ the early community of believers (the umma) turned to the Prophet through whom the Qur’an was revealed, as he was closest to it in terms of time and reception. Thus the Prophet Muhammad became the medium of the Revelation and, in fact, its original interpreter.

Metonymic discourse (in which a concept or object is referred to by one of its attributes) was common in Arab societies of the time, as it is today, and so the reference to the watering hole of sharia alludes – as one would expect in the mainly arid environment of the Arabian Peninsula – to a place of succour, water being a precious element that sustains and enables an individual to survive; the water itself is limpid and clean since living creatures drink from it. This is a striking metaphor. However, to get to that place of serenity and redemption one has to follow the straight path that leads towards it.⁷ This consists of practice and understanding, which is reached by interpretation. It is arrived at by personal effort and realisation guided by communal knowledge and the precepts of the law derived from the ordained readings of sacred pre-modern texts. We should note that interpretation is not an entirely subjective process but is legitimated and regulated by legal scholars – a process that is partly mediated through necessity and public interest. In theory, sharia is something given by God and its fiqh (jurisprudential understanding) is something made, a communally agreed construction of meaning and purpose in society and an ethical endeavour.

This process of evolution took place over many years, but immediately after the Revelation practical issues and problems arose that required ongoing clarification and resolution. To understand this state of affairs and acquire an insight into the early evolution of Islamic law, some background about the complex nature of Arabian society at this time is essential.

Arabia at the Beginning of Islam

Islam did not have an easy birth. Battles were fought, treaties were made and broken, and clans clashed with each other. Soon after the death of the Prophet in 632, war broke out. The so-called fitna, or period of internecine wars of early Islam, was largely concerned with issues of succession, legitimacy and power.⁸ The extraordinary irruption of a new faith, which aimed to upset the world view of the mainly pagan Arabs, continued to hold its place and began to expand by way of conquest into new and contiguous territories within a few years. The old Sasanian and Byzantine empires, and political entities further afield, were overrun by a vibrant new society of Arabs who showed valour, martial skill, energy and political acumen of a high order. Soon an organised system of laws and rules was needed to define rights and obligations under a new socio-political order that was inspired by the new faith. With this expansion of territories and the growing number of new Muslims, new issues arose: new property was acquired, new family relationships came into being, new claimants for inheritance emerged and new principles of governance were required. The conquests, which brought with them social revolutions, set in motion major demographic shifts that created nominally Muslim societies which contained a great number of conquered peoples who were allowed to retain their own religious faith and traditions.

As already said, less than 10 per cent of the Qur’an is made up of verses of a strictly legal nature and yet a polity had to be formed that was inspired by the newly received Revelation in whose name the society would be shaped. Since the source of law was seen to be embodied in the original holy text, interpretations of the text, initially the Qur’an and later the life and sayings of the Prophet, became essential. After the Qur’an, the second most important source of law is the example of the Prophet, or Sunna. This was derived from the accounts of events in his life, his actions and his pronouncements which were initially handed down in the Muslim community by word of mouth. These are called hadith (a term used both singly and collectively in English), and a complex field of learning evolved around this subject, which included the means of judging the reliability of any particular hadith based on its ‘chain of authority’ (isnad) of oral or written transmitters and how trustworthy or otherwise they were adjudged to be. A number of these Traditions were invested a few centuries later with canonical status and further implemented into jurisprudence, called fiqh in Arabic, through the process of usul al-fiqh. This was a legal theory through which Muslim exegetes and jurists ‘discovered’ God’s law through a process of reading the Qur’an and examining other texts which set out the sayings and deeds of the Prophet, collectively known as the Sunna and embodied in hadith. This was carried out by resorting to a notionally agreed community-generated consensus that was gained by discussions and practice amongst the legal scholars known as ijma‘ and, by way of qiyas, the process of analogical and deductive reasoning which has similarities with English Common Law. Therefore, the ‘discovering’ of the law through this process gave rise to jurisprudential understanding in the form of the positive law called fiqh, which was at the time a dynamic and fluid process for establishing the law.⁹

Initial Period 610–661

However, in the first 50 years after the Revelation, this process of ‘discovering’ the law was fluid and took place largely by way of informal consultations. These led mainly to extemporary solutions based on the Qur’anic injunction to ‘obey God, obey the Prophet and obey those who hold authority from amongst you’.¹⁰

Muslims turned primarily to the Prophet, as divine ordinance required constant assessment from the beginning and the necessity for legal interpretation arose at an early stage after the Revelation – and continues to do so. The need to translate God’s command into actuality became more acute with time and, more particularly, when the Prophet moved from Mecca to Medina in 622 where the first compact, known as the Constitution of Medina, was drafted.

Since the principles of the faith are set out in certain essential sacred texts, interpretation is a necessity, and interpretation was pursued actively from the early years of Islam. But interpretation gradually settled into an orderly and ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface and Acknowledgements
• Introduction: Islamic Law in the Contemporary World
• 1. Sharia – Origin through Revelation, Historical Development and Change
• 2. Legal Practice under the Umayyads (661–750)
• 3. Consolidation of the Schools of Law under the Abbasids (750–1258)
• 4. Developments after Shafi‘i
• 5. Further Geographical Expansion and Cultural Accommodation
• 6. Call for Reform – from the Tanzimat to the Arab Spring
• 7. Shi‘i Legal Understanding and Theory of Law
• 8. The Multiple Manifestations of Sharia
• 9. Neo-Ijtihad
• 10. Sharia and Human Rights
• 11. Criminal Justice in Islam
• 12. Islam and Ethics
• 13. Critique
• Glossary
• Notes
• Bibliography