Speech on Sharia (continued from 3/1/16 blogpost)

(partial excerpts from the article — in progress)

II. REPRESENTATIONS OF SHARIA IN THE SPEECH

‘Among the manifold anxieties that haunt the discussion of the place of Muslims in British society, one of the strongest, reinforced from time to time by the sensational reporting of opinion polls, is that Muslim communities in this country seek the freedom to live under sharia law.’[1]

In the speech the Archbishop diagnoses British society and the fears regarding ‘sharia law.’ The sequelae of the pathology he describes are amply evidenced in the reception of the speech. A diagnosis of course is not a cure and the anxieties in Britain and in several theatres of conflict round the world continue. This section is guided by the spirit of the speech and its effort to ‘deconstruct […] crude oppositions and mythologies’ regarding both sharia and Enlightenment.[2] The speech is a representation of Islam and Islamic law by an individual who does not speak for the faith, but for himself and presumably (as Archbishop) for the Church of England. The assumption of this article however is that the accuracy of the representation is independent of the speaker or the speaker’s affiliation, even as due regard should be given the perils and tacit (or explicit) exercise of power in representation.

The speech introduces the topic of sharia by describing what might be called its image problem: forced marriage, corporal and capital punishment,[3] to which it might be added unequal treatment of women, ‘honour’ killing, polygamy, religiously motivated violence against civilian populations, and so forth. The propositions into which the representation of sharia in the speech are decomposed here into 7 elements. These propositions are conceptually overlapping and are not always strictly or precisely consistent: 1) sharia as the expression of universal principles; 2) sharia as a framework and form of thought for the actualisation of (1) in human history; 3) sharia as exact rules; 4) sharia as more than a single code, rather as governed by revealed texts; 5) sharia as concretised by Islamic jurists; 6) sharia as the mind of God, 7) sharia as method of jurisprudence.

III. ANALYSIS OF REPRESENTATION OF SHARIA

1) Sharia as the expression of universal principles

The first two representations are advanced with the aim of ‘dispelling one or two myths about sharia.’[4] The first representation commences negatively, by stating what sharia is not. It is not ‘a monolithic system of detailed enactments.’[5] As a pedagogical intervention this is a reasonable statement to make; for most of the history of Islam and the entirety of its pre-modern history there was no effort made to reduce Islamic law to a code. However there are exceptions. The first attempt to codify Islamic law occurred in 1772 when the British Governor of Bengal Warren Hastings initiated the effort, at the urging of Oxford University Orientalist Sir William Jones (1746-1794).[6] Anglo-Muhammadan law subsisted into the twentieth century, with Dinshah Fardunji Mulla’s Principles of Mahomedan Law[7] citing twenty-eight ‘Enactments’. These deal with: succession, inheritance, wills, (death bed) gifts, charitable trusts (‘wakfs’), pre-emption, marriage (including dowries, divorce, ‘parentage’), guardianship and maintenance of relatives.[8] In 1876 a second codification (of the Hanafī legal school)[9] was completed, at the behest of the Ottoman Sultanate. This work, the Majella, resembles nothing more than a bench book. It follows traditional division of areas of law in Islamic tradition.[10] Therefore in some rare instances Islamic law produced detailed enactments — however as the discussion in BELOW will elucidate these enactments are not sharia even as they are elaborated from sharia.

Moving from the negative to the affirmative, the speech then states that ‘sharia designates primarily […] [u]niversal principles: as any Muslim commentator will insist, what is in view is the eternal and absolute will of God for the universe and for its human inhabitants in particular.’[11] The speech draws instruction from a book by Tariq Ramadan.[12] Arguably this book is inapposite since by its own admission it is aimed at Muslims in the contemporary world;[13] it is essentially a prescriptive, modernist re-interpretation, intervening in one moment in the long arc of Islamic legal history, without seeking to describe the full arc. Nevertheless taking the analysis as given from the speech: there is an equivocation on ‘universal’ and ‘principles.’ With respect to the former sharia is not qua law universal. It does not purport to bind any person who is not Muslim. It is only universal if that word is understood to mean timeless or eternal. Regarding reference to ‘principles’, it is not correct that sharia is reducible only to principles; as III (3) demonstrates the speech itself recognises sharia also consists in and is productive of rules. In fact the distinction between rules and principles is a classical Islamic legal and jurisprudential one requiring further discussion in the next section.

2) Sharia as a framework and form of thought for the actualisation of (1) in human history

The sharia is in fact more definite and bounded than a ‘framework and form of thought’. It is written and there are now few if any disputes about its extent. It comprises the two primary sources of Islamic law: Qur’an and hadith. The former is believed to be the literal word of God.[14] The latter are the deeds and words of the founding Islamic prophet Muhammad; these were compiled with a view towards the law in the mid to late ninth century CE.[15] The hadith understood broadly as the normative example of the prophet and his companions are also described as the Sunna.[16] Sharia contains divine commands, known as ahkām (hukm in the singular).[17] From the perspective of legal philosophy then Islamic law may be characterised as embodying a command theory of law, vide John Austin.

The second representation in the speech is that sharia is ‘something that has to be “actualized”, not a ready-made system. If shar’ designates the essence of the revealed Law, sharia is the practice of actualizing and applying it.’[18] The definitions of shar’ and sharia are the same, rendering this is a distinction without a difference.[19] The word sharia appears only once in the Qur’an: ‘Then we set you on the correct way [sharī‘atan] of the command. So follow it and not the desires of those who lack knowledge.’[20] This verse also offers little assistance in understanding how sharia can act as an agent of actualisation. To understand this issue it is necessary to introduce two elementary distinctions in Islamic law: 1) the distinction between sharia and fiqh, and 2) the distinction between usūl al-fiqh and furū’ al-fiqh.

As to (1), it is correct to say that sharia must be ‘actualized’ and is not ‘ready-made’. The actualisation and application envisaged in the speech can only occur by way of fiqh.[21] The literal meaning of fiqh is ‘understanding,’ ‘comprehension’, ‘insight’ or ‘knowledge.’[22] It may be compared to jurisprudence although it is a broader concept which is also specific to Islamic law, one denoting all operations and techniques that may be applied to sharia in order to render it comprehensible to humans.

The texts of Quran and Sunna, however, are the raw material of the Sharia and not immediately ready for use. They need interpretation and reasoning in order to formulate the rules that they were meant to convey. This human activity is called fiqh, jurisprudence, which term in practice is extended to the rulings derived by the jurists from the two foundational texts.[23]

As to (2), in an arboreal metaphor fiqh is divided into (literally) roots (usūl al-fiqh) and branches (furū’ al-fiqh). The respective written genres[24] of these elucidate the meaning of this distinction. The ‘roots’ are to be found in long legal treatises (mabsūt) that discuss both rules and their jurisprudential justification or derivation. The branches are bare; bald statements of the rules (that is, of the divine commands — ahkām). They are re-stated in a genre similar to a primer (mukhtasar). The leading techniques, the third and fourth sources of Islamic law respectively, are ‘consensus’ (ijmā’) and reasoning (ijtihād), which will be further elaborated at III(4), (5) and (6).

[omitted]

6) Sharia as the mind of God

‘On the one hand, sharia depends for its legitimacy not on any human decision, not on votes or preferences, but on the conviction that it represents the mind of God; on the other, it is to some extent unfinished business so far as codified and precise provisions are concerned.’[25]

This is an excellent statement of the fixity of the sources (Qur’an and hadith) combined with the necessity of a dynamic application of established and novel intellectual methods and legal techniques. Sharia is independent of the human mind, and its authority in no way depends upon human assent. It is a tenet of faith in Islam that the Qur’an is if not the mind of God then the word of God and that the hadith is the representation of God acting through the prophetic figure Muhammad and, less frequently, through his companions. Sections III (1),(3),(4) and (5) have touched upon efforts to codify Islamic law and articulated the impossibility of any codification absent sources extrinsic to sharia, namely fiqh and its characteristic hermeneutic and reasoning, chief among these ijtihād.

7) Sharia as method of jurisprudence

‘To recognise sharia is to recognise a method of jurisprudence governed by revealed texts rather than a single system.’[26]

As explained in section III(2), sharia is not a method. Usūl al-fiqh contains the methods by means of which the ahkām latent in the sharia may be accessed. The principles of fiqh constitute the methods and the ahkām are the product of the application of this set of methods, techniques and procedures. Sharia encompasses the subset of legal materials that in Islamic belief are purely divine in origin: Qur’an and hadith. The actions and interventions of jurists or of any other Muslim seeking to enquire into their faith and tis demands are, true to say, governed by revealed texts. This could be characterised as a single system but with wide latitude for interpretation and argument, or as many systems operating within the confines established by revealed texts[27] the extent and content of which are wholly agreed in the case of the Qur’an and partially so in the case of the hadith.

IV. CONCLUSION

‘Writing free verse is like playing tennis with the net down.’[28]

[omitted]

 

[1] The speech. In all quotations from the speech the emphasis is as in the original.

[2] The speech concluded: ‘it seems that if we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment.’

[3] ‘And what most people think they know of sharia is that it is repressive towards women and wedded to archaic and brutal physical punishments; just a few days ago, it was reported that a “forced marriage” involving a young woman with learning difficulties had been “sanctioned under sharia law” – the kind of story that, in its assumption that we all “really” know what is involved in the practice of sharia, powerfully reinforces the image of – at best – a pre-modern system in which human rights have no role. The problem is freely admitted by Muslim scholars.  “In the West”, writes Tariq Ramadan in his groundbreaking Western Muslims and the Future of Islam, “the idea of Sharia calls up all the darkest images of Islam…” (Oxford, 2004), p 31.

[4] Speech.

[5] Speech. Indeed such is presupposed by calls for the application (tatbīq) of the shariah. In order to be applied must be ‘enacted’ and must be sufficiently detailed — and it should be added sufficiently clear and unambiguous.

[6] WB Hallaq, An Introduction to Islamic Law (Cambridge, 2009) pp 85-86. There is a certain irony on the English origins of this legal project of codification and its labelling as ‘Anglo-Muhammadan’ law.

[7] Bombay, 1905. The book purports to be a guide for students studying the subject ‘preface, iii), and is modeled on Sir Roland Wilson’s DIGEST of ANGLO-MUHAMMADAN LAW (iv).

[8] Table of enactments — however some of these clearly do not relate to Islam. The reception of Anglo-Muhammadan law in India and Indian Ocean states including Mauritius continues today in the form of the charitable trust (waqf in Arabic): ‘The Social and Legislative History of the Islamic Trust (waqf) in Mauritius,’ Commonwealth Law Bulletin [online 23 December 2015, forthcoming in print].

[9] For a discussion of the emergence of the distinct legal schools of Islamic law: Christopher Melchert, The Formation Of The Sunni Schools Of Law, 9th-10th Centuries C.E. (Leiden, 1997), pp 68–86, and Knut Vikør, Between God and the Sultan: A History of Islamic Law (Oxford, 2005), pp 100–101.
For explanation of the characteristics of the legal schools: Joseph Schacht, An Introduction to Islamic Law (Oxford, 1982), pp 56-68. The legal schools and the theory of the imamate in Shi’ī Islam are distinctive; the speech impliedly does not encompass them and this article deals exclusively with sharia in Sunni traditions. See Nicholas J. Coulson, A History of Islamic Law (Edinburgh, Edinburgh University Press, 1964; Transaction Publishers, 2011), 103-116 regarding the law of the Shi’a, the largest minority sect.

[10] the Arabic title. It was written in Ottoman Turkish not Arabic; it is available in English as The Mejelle (Kuala Lumpur, 2007). Regarding the purpose of the codification, it states: ‘For this reason if a book be made, easy to understand, about the practical part of the Sher (Fiqh) [Islamic law] dealing with transactions between people, to include accepted opinions only, which are free from dispute, every one will study with facility and will refer his transactions to it, and also if there is a book which is small and conveniently arranged, there will be great benefits for the naibs, and the members of the Nizam Courts, and the government administrative officials, who as a consequence of being qualified by the study of the Sher, Law, to the best of their ability, when it is required to do so. And further the book being held in esteem and conformed to in the Sher Court, it will become unnecessary to frame Laws for civil suits…’ (xxvi). The Mejelle functioned as the Civil Code of the Ottoman Empire (1877-1926) — ‘it remains residual code for some Arab jurisdictions today’ — Chibli Mallat, Introduction to Middle Eastern Law (Oxford, 2009), p 245

[11] Speech.

[12] Quoting Ramadan Western Muslims, p 32. Ramadan is HH Sheikh Hamad Bin Khalifa Al Thani Professor of Contemporary Islamic Studies; Research Fellow of St Antony’s College, Oxford University.

[13] if not at a small subset of the global Muslim population, that residing in Europe or Britain omitting Asia, Africa and the Middle East. The introduction situates the book in relation to an earlier book by the same author, To Be a European Muslim: A study of the Islamic Sources in the Light of the European context (Oxford, 1997) and states that the purpose of the 2004 book is ‘to understand the universality of the message of Islam and to highlight the means we are given to help us live in our time, in the West with respect for ourselves and for others.’

[14] The Qur’an then is viewed as direct speech, as one long Arabic quotation. For this reason translations of the original are distinguished by their title, for example ‘the Meaning of’ or ‘A Translation’ etc.

[15] There are in the range of 5000-6000 hadith. The first six collections compiled which retain significant authority are referenced by their editor: Muslim, Bukhara, Tirmidhi, Abu Dawud, Al-Nasa’i and Ibn Majah. An issue elided here is the science of assessing hadith for soundness and the debate both between Orientalists and Muslims over the reliability of hadith and their transmission. This debate is summarised in David S Powers, Studies in Qur’an and Hadith (Berkeley, 1986).

[16] pre-Islamic term?

[17] Qur’an 6:57 ‘The command (hukm) is that of God alone’ — ‘ان الحكم الا الله’ (author’s translation)

[18] Also verbatim reference to Ramadan 2004 (p 32) : ‘“the expression of the universal principles of Islam [and] the framework and the thinking that makes for their actualization in human history”’

[19] each definition states the Arabic word with the definite article, defining each as the revealed law of Islam; it also (in a demonstration how readily concepts from other faiths interpose themselves) characterises these words as denoting ‘canonical’ law. JM Cowan, The Hans Wehr Dictionary of Modern Written Arabic (Ithaca, NY, 4th ed 1979).

[20] 45:18, author’s translation: ‘ثم جعلنك علي شريعة من الامر فاتبعها ولا تتبع اهولاء الزين لايعلمون’ There are other appearances of the word with the same root form as sharia, eg 42:13.

[21] YY Haddad and BF Stowasser, ‘Introduction: Islamic Law and the Challenge of Modernity’, in YY Haddad and BF Stowasser, Islamic Law and the Challenges of Modernity (Lanham MD, 2004), pp 1-17 at 4:‘The English term ‘Islamic law’ serves as translation of both shari‘a (“the revealed, or canonical, law of Islam”) and fiqh (“jurisprudence in Islam”). It therefore covers a wider range of meanings than those attributed to ‘law’ in the modern Western context in that it includes such matters as worship, personal morality, family relations, and public welfare. On the other hand, the constructs of both shari‘a and fiqh have over time held difference meanings in past and present Islamic discourses.’

[22] Hans Wehr Dictionary as at note . ‘Fiqh (‘understanding’) connotes the efforts and activities, largely on the part of qualified scholars, to discover and give expression to the many facets of Qur’an- and Sunna-derived principles of shari ‘a law. While shari ‘a is a focus of the faith, fiqh is esteemed mainly as an intellectual literary tradition and/or the sophisticated product of centuries of Islamic high legal culture.’ N Calder, ‘Law’, in JJ Esposito et al (eds), Oxford Encyclopedia of the Modern Islamic World vol 2 (New York, 1995) p 452, quote from Haddad and Stowasser as at note 30, p 4; at p 8: ‘relationship of sharia and fiqh as complex, some treat as inseparable, some draw line between time bound fiqh and timeless sharia.’

[23] R Peters and P Bearman, ‘Introduction: The Nature of the Sharia’ in R Peters and P Bearman (eds), The Ashgate Research Companion to Islamic Law (Ashgate 2014 Surrey), p 1.

[24] The types of documents are explained in O Arabi, DS Powers and SA Spectorsky (eds), Islamic Legal Thought: A Compendium of Muslim Jurists (Leiden, 2013), introduction by the editors pp 1-8 at p 3.

[25] Speech.

[26] Speech.

[27] Again Austin on divine law provides ample fodder for comparison with divine law in another religious tradition and of the crucial (and fraught question in Islam) of the respective authority of reason and revelation. ‘Of the Divine law, or the laws of God, some are revealed or promulgated, and others are unrevealed. Some of the laws of god as are unrevealed are not infrequently denoted by following names or phrases: ‘the law of nature;’ ‘natural law;’ ‘the law manifested to man by the light of nature or reason.’ John Austin, Lectures on Jurisprudence (London 1911) vol 1, p 104.

[28] Robert Frost, ‘Address to Milton Academy,’ 17 May 1935, Milton, MA, US — published in Edward Lathem, Interviews with Robert Frost (1966).

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