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Essay: Shariah law

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  • Shariah law
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Shariah has been a highly controversial topic in today’s world. With countries like Britain having a massive uproar on the suggestion of shariah being used by the muslims in the country to handle marital issues (Feldman 2008). To most westerners the first and only thing that comes to mind about shariah is the Hudud Law which literally means boundaries. They are the six crimes with specified punishments in the Quran and hadith (Rane 2010, pp.86). An example of this, is the amputation of a thief. But historically speaking violent punishments were not an alien concept to other civilisations with European countries still using torture as a method in up till the 18th century. In fact, hudud law was hardly ever actually practiced back then (Feldman 2008). So, what is shariah and why has it become such a big deal?

During the prophetic period, shariah was in tune with the Quranic definition of shariah. Shariah’s literal meaning is “the way to a watering place” and it is used in the Quran in the context of it being a way or purpose towards faith (Rane 2010, pp. 76). Shariah is derived from the Quran and hadith. The word shariah actually only appears once in the whole Quran (Tibi 2012). Although, there are words synonymous to it such as din or the way of life based on tawhid (the oneness of God) (Kamali 2006, pp. 4). Despite a lot of people calling shariah, Islamic law, to western standards it is actually not one. Out of the 6235 verses in the Quran only 350 verses touch the subject of legalities (Kamali 2006, pp. 3). The Quran in short is not a book of law but a guidance. During the prophetic times, shariah was used in the same context as the original meaning of the Quran of it being a path to follow. It was mainly about morality (adab and akhlaq) (Kamali 2006, pp.16). With the five pillars of faith being the basis of it which are shahadah (testimony of faith), salat (prayer), sawm (fasting), zakat (charity) and hajj (pilgrimage) (Tibi 2012, pp. 159). Shariah then, was also more focused on repentance than punishment. The Prophet said to ‘Drop the hudud in cases of doubt as far as you can, for it is better to err in forgiveness than make an error in punishment’. Hudud law’s purpose is to prevent further criminality and to prevent social acceptance of it (Rane 2010, pp. 86). Rane also contends that shariah’s content was also very relevant to that time since the verses were revealed according to the experiences the Prophet and his companions had (2010, pp.82). Aside from the Quran and hadith, ijtihad (independent reasoning) which became a huge part of what shariah law with the prophet himself, citing its validity but was not needed as the Prophet himself is the direct source of God’s words (Kamali 2006, pp.25). Fiqh is also a huge part in shariah today which literally means knowledge is not the structured discipline of today. Rane instead says that it was a personal activity of understanding the Quran and hadith (2010,pp.77). In general, shariah back then was more of an ethical and moral code.

The classical era of Islam which is during the Abbasid period lasting from the 8th to the 13th century saw the start of the development of the shariah we see today due to the development of various schools of thought. It was the era of independent reasoning. This development according to Rane is due to fiqh being recognised as a structured discipline in the late eighth and early ninth century. Fiqh became a ‘science of law’ (2010, pp.77). Shariah in this era is regarded as the irrefutable values, principles and laws of God found in the Quran and the hadith while fiqh is the process of interpreting these values and principles and laws (Rane 2010, pp.77-78). Ijtihad is also used as a part of fiqh and there are methods of ijtihad that falls under it. These interpretations then shape the methodology of these schools of thought. Rane then went on to discuss the four Sunni schools of thought have dominated and remained relevant till today which have formed their own methodology (2010, pp.83-84). They are Hanafi, Maliki, Shafi’i and Hanbali. The Hanafi madhab is a rationalist methodology while the Maliki madhab is a traditionalist methodology. The Shafi’i madhab then, created a methodology that is a middle ground between a rationalist and traditionalist methodology. However, Imam Shafi’i has created a methodology of Islamic Law called usul al-fiqh (principle of Islamic jurisprudence) which has caused problems in the long run as it relies on the texts only and not the context (Kamali 2006, pp.78-79). The last school of thought is the Hanbali madhab. Imam Hanbali rejected the use of personal reasons instead relying heavily in the texts and even using the weak hadiths. During the later years of the Abbasid era circa 900-1250 the principles of jurisprudence has become fixed and the era of independent reasoning has ended. Instead of developing new methodologies, juristic efforts were concentrated on building upon the established methodologies. Muslims then adhere to a particular madhab as a guide on how to perform their faith. By then shariah was considered to be perfected already and it must be followed strictly instead of adapting to times. This blind following is called taqlid (Rane 2010, pp.85). The disinterest in adapting to times has eventually caused shariah to lose touch of reality. With this stagnation of the shariah the Abbasid era has lost a part of what made it a progressive and great civilization, the pursuit of knowledge. The Islamic civilization saw its fall when Mongols or Ottomans took over who also blindly followed the shariah without adapting to the times and instead codifying it which would eventually have bad repercussions (Feldman 2008). However, this fall in civilization has eventually led to a different interpretation of the shariah in the post-colonial and contemporary era.

The post-colonial and contemporary period saw a different kind of change in shariah. It has completely strayed away from its original meaning instead it is trying to fit in into today’s political structure. In the post-colonial era Islamic revivalists: Hasan al-Banna, Abul A’la Maududi, Sayyid Qutb and Ruhollah Khomeini rejected the idea of secularism but supports modernism. Tibi contends that these revivalists, Islam encompasses everything in life for individuals, society and state and the blueprint for this is the sharia and an Islamic state should be built from it but in truth there has never been an actual legal code of shariah in history and it has never been a part of a system (2012, pp. 160). Therefore, the Islamic revivalists are not actually Islamic but Islamists. Islamists are people who seek to the return of a system with divine governance called hakimiyyat Allah (God’s rule) that has never existed before in history (Tibi 2012, pp.160). This is the shari’itization of Islam (Tibi 2012, pp.24). Qutb in particular advocates for the blueprint of shariah as he thinks that establishing an Islamic State is a religious imperative and that anyone who opposes the movement, opposes the word of God making them legitimate targets to violence (Rane 2010, pp.58). Thorpe suggests that this way of thinking led to the creation of the jihadist we know of today due to jihadist justifying whatever they are doing is for God with Bin Laden for one has been heard referencing Qutb’s ideology (2015, pp. 4-6). In order to justify themselves they take the verses of the Quran at face value with no context and that is what the contemporary reformations are fighting against.

Contextualisation is brought back into the interpretation of shariah. Contextualisation is the interpretation based on the political, social, historical, cultural and economic situation surrounding the verses (Rane 2010, pp.89). Instead of nit-picking a specific verse, the whole text must be taken into consideration. There must also be an understanding on the current social issue that must be tackled using the Quranic guidance therefore, an empirical research and through analysis needs to be one on the issue (Rane 2010, pp.89). However, Rane states that contextualisation alone might still lead to literalism so, maqasid (higher objective thinking) must be applied as a framework for contextualisation. Maqasid emphasises the intent of the verses instead of taking it at face value. Because once the intent of the verses is identified the whole text should be read in that light. This makes it adaptable to the changing times as maqasid remains dynamic and open to expansion according to the priorities of every age. Shariah has definitely transformed from its original purpose and has become a legal code however through the use of maqasid, shariah can be applicable to the changing times.

The evolution of shariah especially in the more modern times with it becoming a legal code has caused some problems in the modern world. Through the post-colonial Islamic (Islamist) revitalization the definition of shariah has changed in a majority of muslims. For one Tibi suggests, the position of humans in the interpretation of the shariah has not been acknowledged and due to their teachings being spread far and wide, most muslims consider shariah to be God’s law (2012, pp.25). Therefore, muslims who are not educated on this issue would advocate for the shariah legal code due to the sentiment that it can bring them closer to Allah. Furthermore, since Islamists reject secularism, democracy is also rejected. To them the only legislation that should be enforced is the sharia which causes these countries to be out of tune with reality. This sentiment has seeped into the mentality of most muslims which can be seen in the Gallup Poll and Pew Research Center where the majority of muslim countries vote in favour of making shariah the law of the land (Crabtree 2007; Lipka 2017). Shariah can be used as a legislation but not as whole system as of right now. Maqasid needs to be applied in order for it to be applicable. Human rights are probably the biggest issue the modern world has on the shariah. This can be seen in the Cairo Declaration of Human Rights details the breaching of Human Rights. This declaration came from Islamists disagreeing with the bill or rights so OIC the largest muslim organisation decided to create this declaration (Kayaoglu 2012). Kayaoglu then went on to state the problem of the declaration which is that all the articles are subjected to shariah (2012). Therefore, if a person controls the interpretation of shariah they control the human rights. Human Rights does exist in Islam however as the original intentions of the shariah as a law that is applied equally to everyone that protects the benefits of the people and prevents harm but the only way for it to constitute as something that protects human right, it must be done through the maqasid ideology.

Shariah has undergone a massive change from the prophetic period to modern times. It went from being a general guide on how to practice the faith and to be civilised to shariah or fiqh being an actual discipline where laws are created from it and to finally it being the legal code that we see today. Has shariah become that far off from reality that the concept of it could never be used as a legality? Not really but shariah in its actual intent was never meant to be a basis for a state but since so much has changed in time the only way for it to be applied is through maqasid and usually another form of legislation. This is to keep shariah progressive. Efforts for the application of shariah this way has actual gone underway with political leaders like Anwar Ibrahim from Malaysia, Rachid Ghanouchi from Tunisia and Recep Tayyip Erdogan advocating for it. If these efforts are kept up maybe in the future a country built upon a legislation that incorporates contextual shariah and protects human rights can be created.

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