The Shari’a is all justice, kindness, common good and wisdom. Any rule that departs from justice to injustice […] or departs from common good (maslaha) to harm (mafsada) […] is not part of Sharia’h, even if it is arrived at by literal interpretation. [Ibn Qayyim]
“Just what is Shari’ah“, asks Zakintosh on his blog as he invites “unemotional” responses which are aimed towards understanding and clarifying things. In a series of posts, I would try to limn my understanding of the concept as well as sundry issues which do inform the current socio-religious and political discourse.
As far as it serves in drawing parallels, Iqbal’s famous enquiry: Is religion possible? (his lecture to fifty fourth session of Aristotelian Society, London in 1932) can be used as a starting point in examining the problematic of Sharia’h. Proposing three periods of religious life, i.e. faith, thought and discovery, Iqbal asserts that in the period of faith an individual or society must submit unconditionally without grasping completely the ultimate rationality behind religious demand. Similarly, before considering Sharia’h as a viable vocation, we should probably come in terms with the concept that Islam – during its present sojourn into modernity – can be seen beyond the duality of temporal and spiritual, i.e., as a unified dynamic experience which can enrich and facilitate all the modern aspects of life. It is only after grappling with the sociological possibility of Sharia’h that a modern muslim mind can overcome its proclivity for atomism and its incapability for generalization. In this sense, it is the only right premise that can mother the possibility for right conclusions.
Moving forward beyond the usual etymological distinctions, the concept Sharia’h has been traditionally used to refer to a wide range of philosophical and legal connotations. In an epistemological sense, the arabic terms aq’l (the reason) and hawa (desire) have been often used in contrast with Shara’a in traditional texts (for instance in Shatibi’s Al-Muwafiqaat or Ibn Qayyim’s Ailaam al-Muwaqaeen). At this level, Sharia’h has been essentially understood as a knowledge producing category emanating from the realm of Divine. From an ontological perspective, it has been understood as the expression of legislative aspects of Divine Will whose compliance is not immediate; rather, it is conditional to be exercised by the society itself. This is in clear distinction to His creative Will which is immediately complied for automatically achieving the intended end.
Probably for utilitarian reasons, Sharia’h has often been seen as synonymous to wahy (revelation), especially in the domain of law. True, that revelation is also a knowledge producing function; yet, the contention of equating Sharia’h with revelation historically gave birth to two major ambiguities. Foremost being that revelation is a process which brings the intent of the Divine to the creation, i.e., a medium for expression and not the intended meaning of the expression itself; hence, goes the famous adage by Ali that Quran is but ink and paper, it is the human being that interprets. Secondly, due to an additional understanding of the nature of revelation as a law producing function – albeit indirectly – the terms Sharia’h and Fiqh have been used interchangeably in much of the medieval religious discourse. Right up to the modern times, this usage has added considerable complexity to the discourse. No wonder, the most famous shibboleth of our times: whose Sharia’h? is a by product of same confused usage. What is generally understood as Sharia’h is actually its understanding or explanation, i.e., Fiqh.
But perhaps the most serious historical problem associated with this arguably confused equation was the question of immutability or adaptability of Sharia’h. The upholders of immutability-view claimed that rulings of Sharia’h are absolutely final and unalterable; the premise being that revelation is complete and final. Whereas, the proponents of adaptability-view upheld that the contents of Sharia’h are constantly expanding and undergoing change with varying sociological conditions. As we shall see later, both the views are historically significant because of their direct effect on respective choice and handling of sources of Sharia’h and therefore its ultimate scope.
A final point having great contemporary relevance is whether the Sharia’h can be termed as law in modern sense. The modern notion of law entails in itself the concept of an imposing authority. If Sharia’h or a particular set of its substantive interpretations (i.e. Fiqh) may understood to have the same import as modern law, the nature of ritual, worship and various other moral injunctions (included in the corpus of Sharia’h) will become questionable as far as their respective relationship with individual and society is concerned. This is why it is interesting to note that the practice of Islamic moral brigades forcing individuals to keep beards and imposing particular dress codes is intrinsically modern. The phenomenon will be explored further during the analysis of socio-moral dynamics of Sharia’h. At this point it is sufficient to mention that in Islamic legal tradition, the idea of formally separating legal obligation from theology and morality has its origins in 13th century Spain.
With this introduction, it now seems imperative to dwell into the purposes of Sharia’h, what constitutes it and the major disagreements regarding the nature of various sources.